Andrew B. Prescott

What do you focus on?

Employment Litigation

I defend employers in state and federal courts and administrative agencies such as the National Labor Relations Board, the Equal Employment Opportunity Commission. the Rhode Island Commission for Human Rights, the Massachusetts Commission Against Discrimination, and the Rhode Island Department of Labor and Training. I have handled cases before the Supreme Court of Rhode Island, the First Circuit Court of Appeals in Boston, state courts in Massachusetts and Rhode Island, and federal court in Rhode Island, Massachusetts, and elsewhere.  I handle both single plaintiff and class/collective action cases.

When my clients get sued, I help them develop and execute litigation plans focused on achieving resolution while managing cost. I explore with clients the feasibility of alternative dispute resolution and pursuing cost effective settlements when it makes business sense. For example, in two related cases brought against a bank client, I prevailed in one case on summary judgment and reached a successful settlement of the other through mediation in a coordinated approach that saved money and vindicated management’s decisions.

Training and Employment Counsel

I also educate and train managers and other employees on a variety of subjects, including sexual and other forms of harassment and best management practices, to help minimize exposure to employment liability.  I tailor my trainings to the specific client, and I include interactive opportunities to assess risk and share approaches to common problems. My goal is to provide a practical and useful understanding of the many laws governing employers. I help human resource and executive personnel stay ahead of changes in the law through such training and day-to-day advice.

Labor Relations

Employers turn to me for counsel in remaining union free and for representation when they must deal with a union representing their employees. I have negotiated and written collective bargaining agreements covering employees of hotels, power generating facilities, health care institutions, manufacturers and public transit providers.

Management rights, incentive compensation and other provisions I negotiate give my clients the operational flexibility they need to thrive in competitive environments. In grievance arbitration cases, I use my litigation skills to represent employers defending cases involving termination and discipline, contract interpretation, operational/management rights and benefits.

Victories I have obtained in grievance arbitration have ensured that terminated employees would not be forced back by arbitrators; reinforced management rights; and permitted necessary changes in benefits. Often, employers dealing with unions need representation on multiple fronts such as when I concurrently negotiated a first collective bargaining agreement and defended the same employer in unfair labor practice proceedings alleging firing the chief union organizer for making threats of violence.

What do you see on the horizon?

Employment law will continue to fluctuate and become more complex as the state and federal legislatures deal with the public health crisis, climate change, racial and social unrest, and a continually evolving, increasingly diverse workforce.  As the modern workplace evolves technologically, employers will need to be innovative in employee relations.  On the labor front, federal labor law may swing back to favoring employee and union rights over employers’ rights.

Representative Cases and Clients

• Andrew defended a distributor at trial in a claim alleging that the distributor violated state drug testing law by firing a driver who refused to take a urine drug and alcohol test.  The Superior Court held in favor of the distributor and interpreted the law in a way favorable to employers.  The terminated employee appealed, and Andrew successfully defended the case before the Supreme Court of Rhode Island.
• Andrew has handled hundreds of discrimination charges and lawsuits alleging race, disability, sexual orientation, and age discrimination and sexual harassment.  For example, Andrew is currently defending, among other cases, a nonprofit health care system at the RICHR in a case alleging disability discrimination; a manufacturer at the EEOC and MCAD in a case alleging sex and disability discrimination; and a tech company at the Colorado Civil Rights Commission in a case alleging a wage law violation.
• In a class action alleging that an interstate exterior maintenance company violated the FLSA by failing to pay overtime, Andrew successfully leveraged arguments regarding the exempt status of the drivers and achieved a favorable settlement through federal court mediation.
• Andrew represented a charter school in proceedings before the National Labor Relations Board.  “After hearings before the National Labor Relations Board, the Regional Director certified the school’s election win and the union dropped its appeal from the decision in favor of the school.”     
• Andrew is handling a wage and hour class action in Massachusetts against a quick service restaurant. 
• In federal court, Andrew prepared and argued a motion for a preliminary injunction on behalf of a tech company seeking to enforce a non-competition agreement against a former executive employee.  The court granted the injunction, and the defendants then entered into a settlement agreement on terms highly favorable to the tech company.
• The plaintiff, an internal candidate, alleged that the company had hired an external candidate, a Caucasian male, for the position of Vice President of Human Resources instead of promoting her, especially since she was more substantially qualified for the position. After being notified that she did not receive the position, the plaintiff filed a complaint seeking damages exceeding $1.5 million. After a multi-day hearing in Washington, DC, the arbitrator dismissed the plaintiff’s charge in its entirety.
• In federal court in Pennsylvania, Andrew is defending a distributor in two age discrimination cases.
• Represented a manufacturing company in federal court in Boston against a former employee alleging breach of contract and unlawful termination.
• Andrew represented a gas pipeline and energy company based in Canada in various labor relations matters including negotiations of multiple collective bargaining agreements and grievance arbitrations.
• Represented a national construction company in disability discrimination charge before the Massachusetts Commission Against Discrimination brought by an employee who worked for the company in Iraq and Kuwait.
• Successfully defended a flight school and several individuals in Massachusetts Superior Court injunction action involving a non-compete agreement. The court denied the request for injunctive relief. 
• For more than a decade, Andrew represented a public transit authority in a wide array of labor and employment services including as lead negotiator with two unions in collective bargaining, employment counseling, grievance and interest arbitration, and litigation.
• Represented an architectural lighting manufacturer before the National Labor Relations Board in defense of an unfair labor practice. The company was able to successfully defend the case and the union was forced to withdraw the charge because, among other things, the expanded management rights clause—which Andrew negotiated for the company—gave the company authority to adopt such standards.
• Represented a cooperative membership organization that operates various stores (including a bookstore) and an online catalogue against unfair labor practice (ULP) allegations that they violated the National Labor Relations Act because of a “no solicitation” sign that appears on three of the four public entrances to the store. The Board dismissed the ULP charge based on arguments made by Andrew.

Presentations

• “Making it through changes in employment, labor and workplace health and safety law,” Rhode Island Manufacturers Association Spring Reignite & Reengage Conference, April 13, 2021