Employment Law

The lawyers at McMahon Berger are dedicated to the exclusive representation and defense of employers and management in all areas of employment law. Our nationally and internationally recognized attorneys, based in St. Louis, Missouri, advise, train, and defend our clients across a range of employment-related matters.

Over Six Decades of Employment Law Expertise

At McMahon Berger, our employment law attorneys have a thorough understanding of the constantly shifting legal environment employers must deal with. We work diligently to protect and defend our clients from the high cost of litigation, and we vigorously defend their interests whenever necessary.

Advising

Our attorneys collaborate with employers to ensure full compliance with all federal, state, and local employment laws and regulations. We counsel clients on what to do when workplace concerns arise, from internal disputes relating to leaves of absence and disability accommodations, to matters such as business immigration, frequently appearing before government agencies and state and federal courts.

Training

McMahon Berger keeps clients up-to-date on the most recent legislation, regulation, and court decisions that impact the employer-employee relationship in the workplace. Drawing from our depth of experience, we offer training, seminars, updates, and other resources that help clients make legally sound employment decisions.

Defending

McMahon Berger has successfully represented employers in a range of disputes before courts, government agencies, and in arbitration related to issues ranging from discrimination  claims to executive compensation disputes. In many instances, we are able to reach cost-effective and efficient solutions without going to court at all. When a case does go to court, we are fully prepared to present an energetic defense of our clients’ interests.

Turn to McMahon Berger for experienced representation across all aspects of employment law.
  • Affirmative Action/OFCCP Compliance
  • Background Check & Risk Management
  • Business Immigration
  • Corporate Compliance & Ethics
  • Crisis Management
  • Employee Benefits
  • Employer & Contractor Agreements
  • Employment Practices Audits
  • ERISA Plan Preparation & Compliance
  • Executive Compensation
  • Leaves of Absence & Disability Accommodation
  • Legislation & Regulatory Counseling
  • Performance Management & Counseling
  • Policies, Procedures & Employee Handbooks
  • Professional Employer Organizations & Temporary Worker Management
  • Public Sector Employment
  • Wage & Hour Compliance
  • Workers' Compensation
  • Workplace Health & Safety
  • Workplace Privacy & Data Security

Affirmative Action & OFCCP Compliance

McMahon Berger helps federal contractors and subcontractors satisfy all affirmative action requirements enforced by the Office of Federal Contract Compliance Programs (OFCCP).

Our experience in this area spans a number of industries, including manufacturing, healthcare, and banking, just to name a few. We represent contractors with fewer than 100 employees and those with thousands of workers in multiple locations.

The OFCCP enforces many laws and regulations, including Executive Order 11246, the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, and the Rehabilitation Act. Most federal contractors and subcontractors are required to take affirmative action to recruit, hire, and promote women, minorities, disabled individuals, and certain protected veterans.

Affirmative Action Plans

McMahon Berger works with contractors in preparing and updating affirmative action plans that comply with OFCCP regulations.

We also assist contractors with developing necessary training on all aspects of the affirmative action plan. This gives clients an effective approach for addressing an often complex area of regulatory compliance.

Compliance Audits

McMahon Berger is there if the OFCCP selects a contractor for an audit.

We have represented numerous contractors in compliance reviews and administrative proceedings and litigation before the OFCCP. We have also successfully argued that employers are not subject to OFCCP regulations due to insufficient federal contracts.

We have the knowledge and expertise to ensure clients are fully prepared for compliance audits. We also protect the contractor’s interests in the event negotiations with the OFCCP become necessary in an enforcement action.

Background Checks & Risk Management

Background checks facilitate better hiring by uncovering issues that might interfere with an applicant’s ability to do the essential job functions.

McMahon Berger’s long history of representing management has created a wealth of knowledge in this area. We enable clients to make smart hiring decisions that are consistent with federal, state, and local laws.

Federal Compliance

Employers could be exposed to liability if a background check violates the Fair Credit Reporting Act (FCRA), Title VII, or other federal laws.

Our attorneys advise clients on how to gather the information they need while avoiding federal violations.

State & Local Laws

To make things more confusing, states, counties, and municipalities often have their own laws and ordinances that address hiring and background issues.

These include laws pertaining to drug testing, criminal records, and so-called “Ban the Box” laws.

This complex web of regulations can be especially daunting for employers with locations in multiple jurisdictions. McMahon Berger helps clients adapt their hiring practices to meet these often conflicting requirements.

Business Immigration

McMahon Berger assists companies on a wide range of business immigration issues. U.S. immigration laws are constantly evolving, and we help employers understand what approach will work best for their organization.

Hiring Foreign Workers

McMahon Berger works with clients to obtain the proper work authorization for employees in need of sponsorship. Starting early in the process is essential.

We have successfully helped companies sponsor individuals for nonimmigrant visas, such as H1B, L-1, and TN. We have also helped companies secure permanent residency for employees.

Navigating the intricacies of the immigration laws and USCIS regulations can be difficult, but we have the experience to guide employers in the right direction.

Form I-9 Compliance

We assist companies in developing effective Form I-9 compliance programs.

Understanding employment eligibility and verification rules minimizes potential liability in the event of an audit by the Department of Homeland Security.

We provide training and effective policies and procedures to prepare clients for agency worksite enforcement activities.

We also help employers conduct internal audits of their work authorization documents to ensure company records are accurate and compliant.

Corporate Compliance & Ethics

McMahon Berger brings more than just extensive legal knowledge to the table. We offer practical guidance and risk management advice to ensure your business remains compliant at all times.

Ensuring Compliance

Every organization must have policies and procedures that are consistent with applicable federal, state, and local laws and regulations.

McMahon Berger works closely with companies to draft, review, and implement legally sound policies and procedures within all levels of the organization. We assist clients in all industries and of all sizes.

Evaluating Existing Policies & Procedures

Companies must regularly evaluate current policies, procedures, and practices to maintain compliance as regulations change.

McMahon Berger assists organizations with these evaluations. We also recommend remedial measures to minimize and, whenever possible, shield clients from costly liability.

Crisis Management

No matter the crisis, McMahon Berger helps employers prepare for, manage, and address both internal and external crisis situations.

Crisis Planning

Companies must always be ready for unexpected challenges from a number of sources:

  • Pandemics
  • Work stoppages
  • Natural disasters
  • Surprise investigations
  • Workplace accidents
  • Data Breach

Our attorneys have helped organizations throughout the country plan for and deal with these and many other crisis situations.

Handling the Unexpected

No amount of preparation can prevent all crises from occurring.

That’s why the McMahon Berger team is available 24/7. We move quickly to help employers create the best strategy for handling any unexpected situation.

Employee Benefits

McMahon Berger works with businesses, governments, tax-exempt organizations, and other entities to design, implement, and maintain employee benefit plans.

Employee benefits include health plans, pension plans, and other ancillary benefits. They are a fundamental element of compensation necessary to attract and retain talented employees.

These plans can align employee interests with those of the employer, maximize tax savings, and provide a competitive edge in recruiting and keeping employees.

Employer & Contractor Agreements

McMahon Berger has years of experience drafting employment and contractor agreements. Our attorneys work closely with employers to ensure all issues of importance to the employer are adequately addressed within the agreements.

Employers must document and define key terms and understandings pertaining to relationships with employees or independent contractors. Our team keeps clients up-to-date on legal changes that can impact these agreements.

Employment Agreements

Our attorneys work with clients to produce carefully drafted employment agreements.

We have extensive knowledge of all applicable local, state, and federal laws, such as the Fair Labor Standards Act and the Missouri Minimum Wage Law. Employment agreements must also adhere to relevant contract statutes and case law.

Independent Contractor Agreements

McMahon Berger helps employers draft independent contractor agreements that comply with all applicable local, state, and federal agency guidance and court decisions.

Our attorneys have a thorough understanding of the legally defined differences between independent contractor relationships and employer-employee relationships.

Employment Practices Audits

McMahon Berger has assisted employers with countless litigation matters involving missed compliance issues or a failure to update policies and practices to keep up with existing law.

Our experienced attorneys also help employers avoid problems before they start.

Updated Policies & Practices

Our attorneys provide assistance with a guided self-audit of your employment practices. We can also come in and work with you in a targeted or broad review of your employment and human resources functions.

Resolve Employment-Related Issues

When problems do arise, we want you to be able to rely on your existing policies and practices to guide your response. We will help you make difficult decisions regarding human resources questions or employee concerns.

ERISA Plan Preparation & Compliance

McMahon Berger assists clients in the design of employer-sponsored benefit plans that must comply with the Employee Retirement Income Security Act (ERISA). Our experienced attorneys help employers understand their rights and responsibilities regarding welfare and pension plans under ERISA. This knowledge enables us to develop benefit plans that achieve employer goals, control costs, and streamline administration.

ERISA Plan Design

McMahon Berger works with clients to design, implement, and administer legally sound ERISA-governed benefit programs. We take the time to educate employers on tax effects, reporting, and disclosure requirements.

  • Pension plans including 401(k), 403(b), 457, profit-sharing, and defined benefit plans.
  • Welfare plans including health insurance, severance plans, and bonus plans.

ERISA Plan Administration

To help employers maintain compliance, McMahon Berger offers guidance in the day-to-day administration of benefit plans. Our attorneys help clients avoid penalties, unnecessary taxes, and potential litigation. We assist in the preparation of materials to communicate with employees regarding benefit plans. We also provide training to keep employers up-to-date on legal developments pertaining to ERISA-governed benefits.

ERISA Plan Review

McMahon Berger conducts benefit plan reviews to identify potential ERISA compliance problems.

Occasionally, issues arise through the Employee Plans Compliance Resolution System (EPCRS), Voluntary Compliance Program (VCP), and Delinquent Filer Voluntary Compliance Program (DFVCP).

When necessary, we work with the Internal Revenue Service and Department of Labor to correct plan-related issues on behalf of our clients.

Executive Compensation

McMahon Berger regularly advises employers in the design, drafting, and operation of executive compensation plans. Our attorneys are well versed in the numerous tax and other laws that govern these types of agreements.

Compensation Plan Design

We assist organizations with the choice and design of executive agreements, equity compensation plans, non-qualified deferred compensation plans, and executive employment agreements.

The compensation of key executives and managerial employees requires compliance with and planning around special tax provisions. Executive benefits are governed by Sections 280G and 409A of the Internal Revenue Code, securities laws, and ERISA.

Compensation Plan Defense

When required, our attorneys are prepared to defend the interests of management with regard to executive compensation plans. McMahon Berger represents companies in executive compensation disputes before the IRS, the Department of Labor, in court, and in arbitration.

Leaves of Absence & Disability Accommodation

Leaves of absence and other employee accommodations can significantly impact the workplace, whether they are due to illness, disability, or military service. McMahon Berger helps employers determine when an employee has a legal right to receive a requested leave or accommodation. We have also been at the forefront in advising employers of the rapidly changing leave requirements during the COVID-19 pandemic.

Leaves of Absence

The attorneys at McMahon Berger assist employers in determining whether an employee is entitled to leave. We advise clients on how much leave an employee is entitled to and whether they must be compensated for it.

Disability Accommodations

McMahon Berger works with employers to determine whether an accommodation is reasonable. We offer guidance on other legally sound options as an alternative to the requested accommodation.

Leave & Accommodation Defense

McMahon Berger has successfully defended numerous employers in actions related to leave and accommodations.

  • Americans with Disabilities Act
  • Family and Medical Leave Act
  • Rehabilitation Act
  • Uniformed Service Employment and Reemployment Act
  • State disabilities laws
  • State sick leave laws
  • Local sick leave regulations

Legislation & Regulatory Counseling

Employers do not always have time to keep up with all of the fast-paced changes that occur in legislation and regulation. Because of this, McMahon Berger makes it a point to keep its clients informed of updates.

Updating Policies, Procedures & Practices

Employers must constantly monitor and adapt as regulations change. McMahon Berger partners with clients to make all necessary changes to policies, procedures, and practices to keep up with evolving legal requirements.

Performance Management  & Counseling

McMahon Berger works with employers to implement a strategy for maximizing performance efficiency. We understand the unique challenges facing every industry, from individual performance concerns to organizational management strategy. Our experienced attorneys know how to address the many issues confronting Fortune 500 companies, start-ups, and public agencies.

A Proactive Approach to Performance Management

McMahon Berger advises employers on performance management options, trends, and pitfalls, to help prevent problems before they start. We provide training to guide employers in many aspects of the day-to-day operations:

  • Good interviewing, hiring, and onboarding practices
  • Rewarding behavior that is consistent with the company’s culture and goals
  • Ensuring that employees consistently follow workplace policies and procedures

Our attorneys are also prepared to defend employers when litigation ensues from the results of performance management decisions.

Policies, Procedures & Employee Handbooks

McMahon Berger ensures that employment policies are accurate, effective, and legally compliant in every jurisdiction where our clients operate. Our attorneys are experienced in drafting, reviewing, auditing, and revising employment policies, procedures, handbooks, and manuals. We work with employers operating throughout the United States and beyond.

Laws Governing Employee Policies

Employment policies, procedures, and handbooks must contemplate and address many areas of federal, state and local law.

  • Family and Medical Leave Act
  • Title VII of the Civil Rights Act of 1964
  • Age Discrimination in Employment Act
  • Americans with Disabilities Act
  • ERISA
  • State laws
  • Local ordinances

Employment Policy Development

McMahon Berger works with employers to develop policies that satisfy all applicable federal, state, and local regulations. Accurate and effective employment policies are the first line of communication with a company’s employees. Legally sound policies are also integral to an employer’s defense in employment litigation. On the other hand, policies that are unclear, outdated, or non-compliant may be used against employers in litigation or before government agencies.

Professional Employer Organizations & Temporary Worker Management

McMahon Berger guides employers through the use of Professional Employer Organizations or temporary workers. PEOs and temporary workers can assist employers in managing workforce compliance functions or filling in where permanent employees aren’t an option.

PEO & Temporary Worker Compliance

Our attorneys work to ensure that the use of PEOs or temporary workers truly does relieve, instead of increase, the employer’s burden.

The key often starts at the beginning of the PEO or temporary worker relationship. Negotiating an effective agreement with the PEO or temporary agency can save significant headaches in the future.

McMahon Berger helps employers navigate some of the more challenging aspects of using PEOs or temporary workers. These include joint employer liability issues and determining who has responsibility for claims by employees (temporary or otherwise).

Public Sector Employment

McMahon Berger possesses the experience, knowledge, and expertise to successfully navigate the many complexities of public sector employment. We have represented over 75 cities, towns, fire departments, police departments, ambulance districts, and other governmental entities throughout Missouri, Illinois and beyond.

Public Sector Employment Challenges

Our attorneys help public entities grapple with the many complexities that are unique to public sector employment. These include due process and other constitutional considerations, federal civil rights laws, open records, and freedom of information laws (sunshine laws).

Public Sector Labor Relations

McMahon Berger assists clients with the specific obligations, processes, and challenges involved in public sector bargaining.

Wage & Hour Compliance

McMahon Berger has been counseling clients on wage and hour requirements for over 60 years. Our attorneys work with employers to periodically review compliance with all wage and hour obligations. We also help clients document their adherence to all applicable laws.

Fair Labor Standards Act

McMahon Berger works to ensure compliance with the Fair Labor Standards Act (FLSA) and other federal laws that apply to most employers. It requires payment of the federal minimum wage and overtime for non-exempt employees. It also regulates the use of child labor.

Prevailing Wage

Our attorneys advise federal and state contractors on the additional wage and hour obligations imposed by the Davis-Bacon Act and similar state statutes. We assist in determining whether contract coverage exists, and, if so, what the employer’s liability may be. McMahon Berger has successfully defended clients before the U.S. Department of Labor and in state court actions related to prevailing wage.

State & Local Wage Laws

McMahon Berger advises clients on minimum wage and overtime requirements in many states and other jurisdictions. Other laws regulate the frequency of payment of wages, the form of wage statements, payments to terminated employees, and payout of accrued vacation and sick time.

Common Wage & Hour Issues

Failure to comply with federal or state policies can result in enforcement actions, as well as litigation from current and former employees. Given the significant potential for liability, ongoing compliance is essential to protecting your business. Here are some of the most frequent wage and hour issues our attorneys have seen:

  • Classifying workers as “independent contractors” instead of “employees”
  • Classifying employees as “exempt” or “non-exempt” from certain minimum wage or overtime obligations
  • Deductions from employee wages
  • Payment of overtime on non-discretionary bonuses
  • Payment for pre- and post-shift activities
  • “Off-the-clock” work by employees
  • Tip credit and tip-pooling
  • Final paychecks to separating employees

Workers’ Compensation

The workers’ compensation system is designed to give employers some certainty when it comes to employee injuries that occur in the workplace. McMahon Berger advises clients on the sometimes confusing impact of workers’ compensation laws on how employers manage leave.

Leave & Accommodation Requirements

Our attorneys assist clients with leave and accommodations after a workplace injury. The FMLA and other applicable laws impose leave obligations on employers, while the ADA governs accommodations for injured employees.

Retaliation Clients

McMahon Berger represents employers in defending claims of retaliation for asserting rights under state’s workers compensation laws.

Workplace Health & Safety

McMahon Berger advises clients on health and safety requirements, as well as post-accident obligations. We help to ensure up-to-date compliance with the ever-changing safety standards. Our attorneys have successfully defended employers before state and federal workplace safety agencies.

Risk Reduction

Employers also face the constant challenge of identifying and mitigating foreseeable risks. Our attorneys collaborate with workplace safety professionals to uncover these risks and take the required steps to abate potential harm.

Post-Accident Obligations

Employers are often caught unaware of their responsibilities following a workplace accident. Additionally, the Occupational Safety and Health Administration’s (OSHA) “Recording” and “Reporting” requirements are confusing, and improper recording or reporting may result in fines or increases in Workers Compensation insurance. McMahon Berger assists in post-accident investigations and informs clients whether an injury is recordable or reportable.

OSHA Whistleblower Claims

Employees can file what is called an 11(c) claim with OSHA, alleging retaliation for reporting concerns about workplace safety. McMahon Berger’s attorneys have substantial experience representing employers against such claims and can help guide you through what is necessary to defend yourself against one.

Workplace Privacy & Data Security

McMahon Berger routinely advises employers on their obligations under various privacy laws. These include the Health Insurance Portability and Accountability Act (HIPAA), the Americans with Disabilities Act (ADA), and the Family Medical Leave Act (FMLA).

Privacy Law & Hiring

Our attorneys counsel employers regarding the extent of inquiries that are allowed during the hiring process. State and local laws vary with regard to background checks, inquiries into criminal convictions, drug testing, and similar issues.

Employee Privacy

McMahon Berger helps employers understand privacy laws concerning employee monitoring, surveillance, and GPS equipment in the workplace. We offer guidance with respect to permissible inquiries into employees’ social media accounts.

Disclosure of Information

McMahon Berger helps employers deal with requests for employee information, such as subpoenas and requests for personnel records. We provide counsel regarding the scope and extent of information on prospective, current, and former employees that can permissibly be disclosed. Further, we ensure compliance with data security laws dealing with the disclosure and disposal of personal information.

Affirmative Action & OFCCP Compliance

McMahon Berger helps federal contractors and subcontractors satisfy all affirmative action requirements enforced by the Office of Federal Contract Compliance Programs (OFCCP).

Our experience in this area spans a number of industries, including manufacturing, healthcare, and banking, just to name a few. We represent contractors with fewer than 100 employees and those with thousands of workers in multiple locations.

The OFCCP enforces many laws and regulations, including Executive Order 11246, the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, and the Rehabilitation Act. Most federal contractors and subcontractors are required to take affirmative action to recruit, hire, and promote women, minorities, disabled individuals, and certain protected veterans.

Affirmative Action Plans

McMahon Berger works with contractors in preparing and updating affirmative action plans that comply with OFCCP regulations.

We also assist contractors with developing necessary training on all aspects of the affirmative action plan. This gives clients an effective approach for addressing an often complex area of regulatory compliance.

Compliance Audits

McMahon Berger is there if the OFCCP selects a contractor for an audit.

We have represented numerous contractors in compliance reviews and administrative proceedings and litigation before the OFCCP. We have also successfully argued that employers are not subject to OFCCP regulations due to insufficient federal contracts.

We have the knowledge and expertise to ensure clients are fully prepared for compliance audits. We also protect the contractor’s interests in the event negotiations with the OFCCP become necessary in an enforcement action.

Background Checks & Risk Management

Background checks facilitate better hiring by uncovering issues that might interfere with an applicant’s ability to do the essential job functions.

McMahon Berger’s long history of representing management has created a wealth of knowledge in this area. We enable clients to make smart hiring decisions that are consistent with federal, state, and local laws.

Federal Compliance

Employers could be exposed to liability if a background check violates the Fair Credit Reporting Act (FCRA), Title VII, or other federal laws.

Our attorneys advise clients on how to gather the information they need while avoiding federal violations.

State & Local Laws

To make things more confusing, states, counties, and municipalities often have their own laws and ordinances that address hiring and background issues.

These include laws pertaining to drug testing, criminal records, and so-called “Ban the Box” laws.

This complex web of regulations can be especially daunting for employers with locations in multiple jurisdictions. McMahon Berger helps clients adapt their hiring practices to meet these often conflicting requirements.

Business Immigration

McMahon Berger assists companies on a wide range of business immigration issues. U.S. immigration laws are constantly evolving, and we help employers understand what approach will work best for their organization.

Hiring Foreign Workers

McMahon Berger works with clients to obtain the proper work authorization for employees in need of sponsorship. Starting early in the process is essential.

We have successfully helped companies sponsor individuals for nonimmigrant visas, such as H1B, L-1, and TN. We have also helped companies secure permanent residency for employees.

Navigating the intricacies of the immigration laws and USCIS regulations can be difficult, but we have the experience to guide employers in the right direction.

Form I-9 Compliance

We assist companies in developing effective Form I-9 compliance programs.

Understanding employment eligibility and verification rules minimizes potential liability in the event of an audit by the Department of Homeland Security.

We provide training and effective policies and procedures to prepare clients for agency worksite enforcement activities.

We also help employers conduct internal audits of their work authorization documents to ensure company records are accurate and compliant.

Corporate Compliance & Ethics

McMahon Berger brings more than just extensive legal knowledge to the table. We offer practical guidance and risk management advice to ensure your business remains compliant at all times.

Ensuring Compliance

Every organization must have policies and procedures that are consistent with applicable federal, state, and local laws and regulations.

McMahon Berger works closely with companies to draft, review, and implement legally sound policies and procedures within all levels of the organization. We assist clients in all industries and of all sizes.

Evaluating Existing Policies & Procedures

Companies must regularly evaluate current policies, procedures, and practices to maintain compliance as regulations change.

McMahon Berger assists organizations with these evaluations. We also recommend remedial measures to minimize and, whenever possible, shield clients from costly liability.

Crisis Management

No matter the crisis, McMahon Berger helps employers prepare for, manage, and address both internal and external crisis situations.

Crisis Planning

Companies must always be ready for unexpected challenges from a number of sources:

  • Pandemics
  • Work stoppages
  • Natural disasters
  • Surprise investigations
  • Workplace accidents
  • Data Breach

Our attorneys have helped organizations throughout the country plan for and deal with these and many other crisis situations.

Handling the Unexpected

No amount of preparation can prevent all crises from occurring.

That’s why the McMahon Berger team is available 24/7. We move quickly to help employers create the best strategy for handling any unexpected situation.

Employee Benefits

McMahon Berger works with businesses, governments, tax-exempt organizations, and other entities to design, implement, and maintain employee benefit plans.

Employee benefits include health plans, pension plans, and other ancillary benefits. They are a fundamental element of compensation necessary to attract and retain talented employees.

These plans can align employee interests with those of the employer, maximize tax savings, and provide a competitive edge in recruiting and keeping employees.

Employer & Contractor Agreements

McMahon Berger has years of experience drafting employment and contractor agreements. Our attorneys work closely with employers to ensure all issues of importance to the employer are adequately addressed within the agreements.

Employers must document and define key terms and understandings pertaining to relationships with employees or independent contractors. Our team keeps clients up-to-date on legal changes that can impact these agreements.

Employment Agreements

Our attorneys work with clients to produce carefully drafted employment agreements.

We have extensive knowledge of all applicable local, state, and federal laws, such as the Fair Labor Standards Act and the Missouri Minimum Wage Law. Employment agreements must also adhere to relevant contract statutes and case law.

Independent Contractor Agreements

McMahon Berger helps employers draft independent contractor agreements that comply with all applicable local, state, and federal agency guidance and court decisions.

Our attorneys have a thorough understanding of the legally defined differences between independent contractor relationships and employer-employee relationships.

Employment Practices Audits

McMahon Berger has assisted employers with countless litigation matters involving missed compliance issues or a failure to update policies and practices to keep up with existing law.

Our experienced attorneys also help employers avoid problems before they start.

Updated Policies & Practices

Our attorneys provide assistance with a guided self-audit of your employment practices. We can also come in and work with you in a targeted or broad review of your employment and human resources functions.

Resolve Employment-Related Issues

When problems do arise, we want you to be able to rely on your existing policies and practices to guide your response. We will help you make difficult decisions regarding human resources questions or employee concerns.

ERISA Plan Preparation & Compliance

McMahon Berger assists clients in the design of employer-sponsored benefit plans that must comply with the Employee Retirement Income Security Act (ERISA). Our experienced attorneys help employers understand their rights and responsibilities regarding welfare and pension plans under ERISA. This knowledge enables us to develop benefit plans that achieve employer goals, control costs, and streamline administration.

ERISA Plan Design

McMahon Berger works with clients to design, implement, and administer legally sound ERISA-governed benefit programs. We take the time to educate employers on tax effects, reporting, and disclosure requirements.

  • Pension plans including 401(k), 403(b), 457, profit-sharing, and defined benefit plans.
  • Welfare plans including health insurance, severance plans, and bonus plans.

ERISA Plan Administration

To help employers maintain compliance, McMahon Berger offers guidance in the day-to-day administration of benefit plans. Our attorneys help clients avoid penalties, unnecessary taxes, and potential litigation. We assist in the preparation of materials to communicate with employees regarding benefit plans. We also provide training to keep employers up-to-date on legal developments pertaining to ERISA-governed benefits.

ERISA Plan Review

McMahon Berger conducts benefit plan reviews to identify potential ERISA compliance problems.

Occasionally, issues arise through the Employee Plans Compliance Resolution System (EPCRS), Voluntary Compliance Program (VCP), and Delinquent Filer Voluntary Compliance Program (DFVCP).

When necessary, we work with the Internal Revenue Service and Department of Labor to correct plan-related issues on behalf of our clients.

Executive Compensation

McMahon Berger regularly advises employers in the design, drafting, and operation of executive compensation plans. Our attorneys are well versed in the numerous tax and other laws that govern these types of agreements.

Compensation Plan Design

We assist organizations with the choice and design of executive agreements, equity compensation plans, non-qualified deferred compensation plans, and executive employment agreements.

The compensation of key executives and managerial employees requires compliance with and planning around special tax provisions. Executive benefits are governed by Sections 280G and 409A of the Internal Revenue Code, securities laws, and ERISA.

Compensation Plan Defense

When required, our attorneys are prepared to defend the interests of management with regard to executive compensation plans. McMahon Berger represents companies in executive compensation disputes before the IRS, the Department of Labor, in court, and in arbitration.

Leaves of Absence & Disability Accommodation

Leaves of absence and other employee accommodations can significantly impact the workplace, whether they are due to illness, disability, or military service. McMahon Berger helps employers determine when an employee has a legal right to receive a requested leave or accommodation. We have also been at the forefront in advising employers of the rapidly changing leave requirements during the COVID-19 pandemic.

Leaves of Absence

The attorneys at McMahon Berger assist employers in determining whether an employee is entitled to leave. We advise clients on how much leave an employee is entitled to and whether they must be compensated for it.

Disability Accommodations

McMahon Berger works with employers to determine whether an accommodation is reasonable. We offer guidance on other legally sound options as an alternative to the requested accommodation.

Leave & Accommodation Defense

McMahon Berger has successfully defended numerous employers in actions related to leave and accommodations.

  • Americans with Disabilities Act
  • Family and Medical Leave Act
  • Rehabilitation Act
  • Uniformed Service Employment and Reemployment Act
  • State disabilities laws
  • State sick leave laws
  • Local sick leave regulations

Legislation & Regulatory Counseling

Employers do not always have time to keep up with all of the fast-paced changes that occur in legislation and regulation. Because of this, McMahon Berger makes it a point to keep its clients informed of updates.

Updating Policies, Procedures & Practices

Employers must constantly monitor and adapt as regulations change. McMahon Berger partners with clients to make all necessary changes to policies, procedures, and practices to keep up with evolving legal requirements.

Performance Management  & Counseling

McMahon Berger works with employers to implement a strategy for maximizing performance efficiency. We understand the unique challenges facing every industry, from individual performance concerns to organizational management strategy. Our experienced attorneys know how to address the many issues confronting Fortune 500 companies, start-ups, and public agencies.

A Proactive Approach to Performance Management

McMahon Berger advises employers on performance management options, trends, and pitfalls, to help prevent problems before they start. We provide training to guide employers in many aspects of the day-to-day operations:

  • Good interviewing, hiring, and onboarding practices
  • Rewarding behavior that is consistent with the company’s culture and goals
  • Ensuring that employees consistently follow workplace policies and procedures

Our attorneys are also prepared to defend employers when litigation ensues from the results of performance management decisions.

Policies, Procedures & Employee Handbooks

McMahon Berger ensures that employment policies are accurate, effective, and legally compliant in every jurisdiction where our clients operate. Our attorneys are experienced in drafting, reviewing, auditing, and revising employment policies, procedures, handbooks, and manuals. We work with employers operating throughout the United States and beyond.

Laws Governing Employee Policies

Employment policies, procedures, and handbooks must contemplate and address many areas of federal, state and local law.

  • Family and Medical Leave Act
  • Title VII of the Civil Rights Act of 1964
  • Age Discrimination in Employment Act
  • Americans with Disabilities Act
  • ERISA
  • State laws
  • Local ordinances

Employment Policy Development

McMahon Berger works with employers to develop policies that satisfy all applicable federal, state, and local regulations. Accurate and effective employment policies are the first line of communication with a company’s employees. Legally sound policies are also integral to an employer’s defense in employment litigation. On the other hand, policies that are unclear, outdated, or non-compliant may be used against employers in litigation or before government agencies.

Professional Employer Organizations & Temporary Worker Management

McMahon Berger guides employers through the use of Professional Employer Organizations or temporary workers. PEOs and temporary workers can assist employers in managing workforce compliance functions or filling in where permanent employees aren’t an option.

PEO & Temporary Worker Compliance

Our attorneys work to ensure that the use of PEOs or temporary workers truly does relieve, instead of increase, the employer’s burden.

The key often starts at the beginning of the PEO or temporary worker relationship. Negotiating an effective agreement with the PEO or temporary agency can save significant headaches in the future.

McMahon Berger helps employers navigate some of the more challenging aspects of using PEOs or temporary workers. These include joint employer liability issues and determining who has responsibility for claims by employees (temporary or otherwise).

Public Sector Employment

McMahon Berger possesses the experience, knowledge, and expertise to successfully navigate the many complexities of public sector employment. We have represented over 75 cities, towns, fire departments, police departments, ambulance districts, and other governmental entities throughout Missouri, Illinois and beyond.

Public Sector Employment Challenges

Our attorneys help public entities grapple with the many complexities that are unique to public sector employment. These include due process and other constitutional considerations, federal civil rights laws, open records, and freedom of information laws (sunshine laws).

Public Sector Labor Relations

McMahon Berger assists clients with the specific obligations, processes, and challenges involved in public sector bargaining.

Wage & Hour Compliance

McMahon Berger has been counseling clients on wage and hour requirements for over 60 years. Our attorneys work with employers to periodically review compliance with all wage and hour obligations. We also help clients document their adherence to all applicable laws.

Fair Labor Standards Act

McMahon Berger works to ensure compliance with the Fair Labor Standards Act (FLSA) and other federal laws that apply to most employers. It requires payment of the federal minimum wage and overtime for non-exempt employees. It also regulates the use of child labor.

Prevailing Wage

Our attorneys advise federal and state contractors on the additional wage and hour obligations imposed by the Davis-Bacon Act and similar state statutes. We assist in determining whether contract coverage exists, and, if so, what the employer’s liability may be. McMahon Berger has successfully defended clients before the U.S. Department of Labor and in state court actions related to prevailing wage.

State & Local Wage Laws

McMahon Berger advises clients on minimum wage and overtime requirements in many states and other jurisdictions. Other laws regulate the frequency of payment of wages, the form of wage statements, payments to terminated employees, and payout of accrued vacation and sick time.

Common Wage & Hour Issues

Failure to comply with federal or state policies can result in enforcement actions, as well as litigation from current and former employees. Given the significant potential for liability, ongoing compliance is essential to protecting your business. Here are some of the most frequent wage and hour issues our attorneys have seen:

  • Classifying workers as “independent contractors” instead of “employees”
  • Classifying employees as “exempt” or “non-exempt” from certain minimum wage or overtime obligations
  • Deductions from employee wages
  • Payment of overtime on non-discretionary bonuses
  • Payment for pre- and post-shift activities
  • “Off-the-clock” work by employees
  • Tip credit and tip-pooling
  • Final paychecks to separating employees

Workers’ Compensation

The workers’ compensation system is designed to give employers some certainty when it comes to employee injuries that occur in the workplace. McMahon Berger advises clients on the sometimes confusing impact of workers’ compensation laws on how employers manage leave.

Leave & Accommodation Requirements

Our attorneys assist clients with leave and accommodations after a workplace injury. The FMLA and other applicable laws impose leave obligations on employers, while the ADA governs accommodations for injured employees.

Retaliation Clients

McMahon Berger represents employers in defending claims of retaliation for asserting rights under state’s workers compensation laws.

Workplace Health & Safety

McMahon Berger advises clients on health and safety requirements, as well as post-accident obligations. We help to ensure up-to-date compliance with the ever-changing safety standards. Our attorneys have successfully defended employers before state and federal workplace safety agencies.

Risk Reduction

Employers also face the constant challenge of identifying and mitigating foreseeable risks. Our attorneys collaborate with workplace safety professionals to uncover these risks and take the required steps to abate potential harm.

Post-Accident Obligations

Employers are often caught unaware of their responsibilities following a workplace accident. Additionally, the Occupational Safety and Health Administration’s (OSHA) “Recording” and “Reporting” requirements are confusing, and improper recording or reporting may result in fines or increases in Workers Compensation insurance. McMahon Berger assists in post-accident investigations and informs clients whether an injury is recordable or reportable.

OSHA Whistleblower Claims

Employees can file what is called an 11(c) claim with OSHA, alleging retaliation for reporting concerns about workplace safety. McMahon Berger’s attorneys have substantial experience representing employers against such claims and can help guide you through what is necessary to defend yourself against one.

Workplace Privacy & Data Security

McMahon Berger routinely advises employers on their obligations under various privacy laws. These include the Health Insurance Portability and Accountability Act (HIPAA), the Americans with Disabilities Act (ADA), and the Family Medical Leave Act (FMLA).

Privacy Law & Hiring

Our attorneys counsel employers regarding the extent of inquiries that are allowed during the hiring process. State and local laws vary with regard to background checks, inquiries into criminal convictions, drug testing, and similar issues.

Employee Privacy

McMahon Berger helps employers understand privacy laws concerning employee monitoring, surveillance, and GPS equipment in the workplace. We offer guidance with respect to permissible inquiries into employees’ social media accounts.

Disclosure of Information

McMahon Berger helps employers deal with requests for employee information, such as subpoenas and requests for personnel records. We provide counsel regarding the scope and extent of information on prospective, current, and former employees that can permissibly be disclosed. Further, we ensure compliance with data security laws dealing with the disclosure and disposal of personal information.

Labor Law

Advocacy before arbitrators, mediators, labor boards, agencies, and state and federal courts.

INDIVIDUAL CLASS ACTION & LITIGATION

Vigorous pursuit of the best possible solution for each individual client.

Investigations

Uncovering the facts needed to resolve employment and labor issues.

Nonprofit Counseling

Legal assistance with labor and employment matters for nonprofit organizations.