By Braden Campbell

Law360 (April 16, 2020, 8:09 PM EDT) -- As struggling employers shed jobs at historic rates, more stable businesses have a prime opportunity to acquire talent — but they are facing novel challenges in the process.

The U.S. Department of Labor released data Thursday showing that more than 22 million people have filed for unemployment since mid-March, when the agency's figures began to reflect the coronavirus pandemic's toll on the workforce.

Entering the downturn, Jennifer Baldocchi, the Los Angeles-based chair of Paul Hastings LLP's employee mobility and trade secrets practice, expected work in her area to crater as employers dug in for an economic crisis of uncertain duration. Instead, business has stayed steady as some clients eye a sudden glut of talent, she said.

"What we're seeing right now is a really interesting and unique opportunity to, in a market that just two months ago was one of the hottest labor markets for workers that we've seen in generations … snatch up really quality, qualified employees," Baldocchi said.

The coronavirus has upended the labor market in the roughly five weeks since states and cities first began ordering all but some "essential" businesses to close or move online. In early March, the U.S. unemployment rate was near all-time lows; since then, tens of millions of workers have submitted claims for benefits.

These figures show many employers are struggling. But some are gaining an edge, as skilled workers who lose their jobs or see their employers faltering seek out greener pastures.

Baldocchi said most of the hiring is being done by clients that are less affected by the pandemic, either because they're considered essential or because their operations can otherwise continue. These clients see an opportunity to come out stronger when things return to normal, possibly at the expense of competitors.

These businesses are bringing on "your higher-paid executive types, who have historically been in high demand and who may have to be in an unfortunate situation where they're seeing the terms of their employment changed," she said.

Not all attorneys who advise businesses on high-level hiring have seen this trend, however. Epstein Becker Green trade secrets and employee mobility group co-leader Peter Steinmeyer said few clients are hiring in and around Chicago, where he practices.

"To the contrary, I've seen a lot more offer revocations, deferred start dates and, of course, terminations and reductions in force," said Steinmeyer, who has clients across a mix of industries.

Frankfurt Kurnit Klein & Selz PC executive compensation group head Gavin McElroy described a similar trend in New York, the virus' U.S. epicenter. McElroy, who negotiates high-level employment agreements for clients in advertising, marketing and public relations, said he recently helped a "pretty high-level media executive" close a deal. But that hire has been the exception.

"Theoretically, I could sit here and say, 'Wow, these [digital media] people are in a death fight for talent — what a great time to do it,'" McElroy said. "The problem is people think they're probably going to have 20, 30 percent revenue drops."

And these financial struggles are compounded by the difficulty of getting people to work, especially in New York, McElroy said. Employers there can separate desks to an extent or stagger the days their workers come into the office, but workers must generally commute via public transit, where potential virus exposure is high.

Meanwhile, Baldocchi noted that while some of her California-based clients have bolstered operations in other states, the Golden State is home to a high concentration of tech, entertainment and other businesses that have retained customers. These businesses aren't immune to the pandemic, but they're better-situated than many.

Sheeva Ghassemi-Vanni, a Silicon Valley-based Fenwick & West LLP attorney who advises startups and tech companies on employment law, said she has lately spent much of her time walking clients through terminations, salary reductions and furloughs. But some clients have continued to hire new workers, especially engineers, who "are still king," she said. 

"A lot of employees are savvy," Ghassemi-Vanni said. "They may see the writing on the wall and are actually proactively going out there and looking for other opportunities before a reduction in force or anything like that is even announced."

This dynamic poses some challenges for businesses that hope to retain their most skilled employees through the crisis. Ghassemi-Vanni said some clients have offered retention bonuses to keep employees, though such measures may not be feasible for especially hard-hit employers. Businesses can also allay workers' fears by being transparent about their financial condition, to the extent they're not planning an imminent layoff.

And the pandemic poses challenges for those hiring as well. Ghassemi-Vanni said a client recently called on her to draft an employment agreement with "hedging" language accounting for coronavirus-related uncertainty, for example. 

Baldocchi said her clients are figuring out how to bring people on at a time everyone is supposed to keep their distance. If onboarding must be done in person, employers are having new hires pop into physical offices while following federal social distancing guidelines. Otherwise, they're welcoming new workers via teleconference.

"Life is going on, onboarding is happening and companies are trying to figure out how to do that," Baldocchi said.

--Editing by Philip Shea and Kelly Duncan.

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