Erin M. Connell

Partner
Employment Law
Read full biography at www.orrick.com

Erin M. Connell is a partner in the San Francisco office and a member of the Employment Law Group. Orrick’s Employment Law Group was recently named Labor & Employment Department of the Year in California by The Recorder, the premier source for legal news, in recognition of their significant wins on behalf of leading multinational companies on today’s most complex and challenging employment law matters.

Erin’s practice covers all aspects of employment law and involves both litigation and counseling. Erin has defended numerous class actions, EEOC systemic discrimination investigations, and complex individual cases involving claims of discrimination, harassment, retaliation, wrongful termination, unpaid overtime, missed meal and rest breaks, and other alleged wage-and-hour violations. She also regularly advises clients with respect to OFCCP audits, and conducts internal audits covering compensation, hiring, promotions, and reductions in force. Erin also assists clients in developing compensation policies and compliance measures designed to reduce potential exposure.

As an experienced trial lawyer, Erin has tried several cases before California juries and in arbitration, and successfully has obtained numerous defense summary judgment rulings and other favorable resolutions in state and federal court.

Representative clients include: Morgan Stanley, Oracle Corporation, Bank of America, The Home Depot, CVS Caremark, Varian Medical Systems, CoorsTek and Seagate Technology.

Notable engagements include:

Morgan Stanley

  • Member of team that obtained summary judgment and defeated class certification in wage-and-hour class action alleging compelled patronage in violation of California law and various Labor Code claims.
  • Member of team that defeated class certification in wage-and-hour class action challenging the exempt status of financial advisors and alleging unpaid business expenses.
  • Successfully resolved three related complex individual charges alleging breach of contract, wrongful termination, sexual harassment, gender discrimination, retaliation and compensation-related claims.
  • Defended numerous complex individual cases involving all types of employment-related claims, including claims of discrimination, harassment, retaliation, wrongful termination, breach of contract and wage-and-hour violations.

The Home Depot.

  • Successfully resolved wage-and-hour class action involving claims of unpaid overtime, meal and rest break penalties and other wage-and-hour violations based on alleged misclassification of independent contractors.

Bank of America.

  • Defended numerous complex individual cases involving all types of employment-related claims, including claims of discrimination, harassment, retaliation, wrongful termination, breach of contract and wage-and-hour violations.

Wyndham Vacation Ownership, Inc.

  • Successfully tried and/or resolved claims of ten plaintiffs alleging discrimination, retaliation, harassment, wrongful termination and related claims.

EEOC/OFCCP representative matters include:

  • EEOC Commissioner’s charge alleging nationwide race and national origin discrimination in hiring.
  • Nationwide EEOC investigation alleging race and national origin discrimination in the use of criminal background checks.
  • Nationwide EEOC investigation alleging systemic failure to accommodate individuals with disabilities.
  • Multiple simultaneous OFCCP audits assessing affirmative action compliance and potential systemic discrimination in hiring, promotions and compensation.
  • Multiple OFCCP audits and threatened DOL litigation alleging systemic gender and race discrimination in hiring.

Erin frequently speaks on California and national employment law issues, and has published numerous articles on employment law in publications around the country. She also provides training on managing within the law and preventing sexual harassment, and conducts internal investigations on employment-related matters.

Erin Connell

PDA and Young: Pregnancy Discrimination Law to Break from Its Infancy

On the heels of the Hobby Lobby decision in late June, the Supreme Court has signaled that women’s health issues in the workplace will continue to be a central issue by granting a petition for certiorari in Young v. United Parcel Service on July 1, 2014.  In Young, the Court will examine whether the Pregnancy Discrimination Act (“PDA”), which provides that pregnant women “shall be treated the same for all employment-related purposes…as other persons…similar in their ability or inability to work,” requires employers to provide work accommodations to pregnant women to the same extent they provide them to other disabled workers.  The Court’s review of Young comes at a time when pregnancy discrimination laws are gaining more attention and more traction, and litigation in this area is increasing.

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Did the EEOC Try Hard Enough to Resolve Your Case Before Filing Suit?

March, 2014, three powerful business groups urged the U.S. Supreme Court to consider an important issue at stake for employers in Mach Mining LLC v. Equal Employment Opportunity Commission—can courts review the adequacy of the Equal Employment Opportunity Commission’s (“EEOC’s”) conciliation efforts prior to filing suit? In Mach Mining, the Seventh Circuit held “no,” although six other circuits to address this issue have acknowledged an employer’s ability to raise failure to conciliate as an affirmative defense. If the Supreme Court grants Mach Mining’s February 25, 2014 petition for review, the ruling could have significant impact for employers facing potential litigation with the EEOC. Read More

Off the Playground, Out of the Locker Room, and into the Office: How to Combat Workplace Bullies

The Miami Dolphins recently have come under intense scrutiny amid allegations that coaches encouraged defensive guard Richie Icognito to bully teammate Jonathan Martin in an effort to “toughen” him up. The alleged bullying was so severe, including threats of violence and racially derogatory statements, that Martin left the team, the NFL launched an investigation, and the Dolphins suspended Incognito indefinitely. While it may have taken this locker room scandal to bring bullying into the public eye, the legal and practical ramifications of workplace bullying are common, and employers can learn many lessons from this case. Read More

NLRB Continues to Hold Firm on D.R. Horton Reasoning Despite Contrary Decisions in the Courts

Despite increasing rejection of the NLRB’s controversial D.R. Horton decision by almost all federal courts which have considered it, an NLRB administrative law judge recently felt there was no choice but to follow Board precedent and so applied and affirmed its holding. These cases illustrate the growing divide between the NLRB and courts over the D.R. Horton decision and the growing trend of federal courts refusing to uphold its enforcement. Read More

The High Cost of Hiring Unpaid Interns

Given the difficulty of finding a job in today’s economy, unpaid internships are becoming increasingly popular, particularly for students looking to gain resume-boosting experience. Yet just because someone is willing to work for free and will derive some benefit from an unpaid internship, it does not make it legal under state and federal law. Class litigation regarding unpaid interns is on the rise, and likely will increase even more given the recent ruling in Glatt v. Fox Searchlight PicturesRead More

The EEOC Aggressively Pursues Criminal Background Check Policies

On June 11, 2013, the Equal Employment Opportunity Commission (“EEOC”) filed two separate lawsuits against Dollar General and BMW Manufacturing Co. LLC, accusing each company of discriminating against Black job applicants through the improper use of criminal background screens. The aggressive positions taken by the EEOC in these cases demonstrate the agency means business with respect to cracking down on criminal background check policies that it feels are not consistent with its April 25, 2012 enforcement guidance on the use of criminal conviction and arrest records in employment decisions. The lawsuits also underscore the importance of reviewing existing policies in light of the EEOC’s emphasis on this issue.

For decades, the EEOC has taken the position that criminal background check policies pose a particular threat of adverse impact discrimination against Black and Hispanic job applicants in light of statistics showing that they are convicted at a rate disproportionally greater than their representation in the population. The agency’s first written policy guidance on the use of criminal background screens, published in 1987, explains that “the Commission has held and continues to hold that [criminal background check policies are] unlawful under Title VII in the absence of a justifying business necessity.” In April 2012, the EEOC issued new guidance on the topic (click here to read our April 30, 2012 blog entry on the EEOC’s guidance). Technically, the new guidance did not establish new rules. It undoubtedly illustrates, however, the increased scrutiny under which EEOC is reviewing criminal background check policies such as those at issue in the Dollar General and BMW lawsuits. Read More

Eighth Circuit Rules Employers Can Change Workweek Regardless of Effects on Overtime Pay

On October 10, 2012, the Eighth Circuit in Abshire v. Redland Energy Services, LLC (Case No. 11-3380) confirmed that under the FLSA, employers are allowed to alter the days contained in employees’ workweek to minimize overtime pay as long as the change is intended to be permanent. While this decision is certainly a victory for employers, employers (particularly in California) should nevertheless ensure compliance with state law before making any changes.

Abshire involved claims against employer Redland Energy Services, LLC, a company that drills and services natural gas wells in Arkansas. Most of Redland’s workers worked a regular Monday-to-Friday schedule, and any weekly overtime was calculated on a regular Sunday-to-Saturday week. Redland’s drill operators, however, worked 12-hour shifts on seven consecutive days, from Tuesdays through Mondays, and then received seven days off. Originally, Redland calculated weekly overtime for its drill operators on a Tuesday-to-Monday week. In May 2009, however, Redlands switched to a Sunday-to-Saturday week, thereby making the workweek consistent for all employees. Redland claimed that this switch was made not only to decrease payroll expense by reducing the number of hours that drill operators must be paid at the FLSA-mandated overtime rate, but also to reduce administrative costs because the change would allow the company to calculate the overtime for all of its employees on the same weekly basis. The drill operators alleged that the supposed reduction of administrative costs was merely a pretext, and the effort to reduce the amount of overtime paid was impermissible under the FLSA. Read More

Amendment to New York’s Labor Law Expands the Universe of Permissible Wage Deductions

The New York State Legislature recently passed a bill amending New York Labor Law Section 193 and establishing new categories of permissible wage deductions that employers may take with the consent of employees. In addition to allowing employers (with employee consent) to recoup advances on wages or accidental overpayments, the new amendments also permit employee-approved deductions for things such as discounted mass transit tickets; gym membership dues; cafeteria or pharmacy purchases made at the employer’s place of business; and education and child care expenses. Both employers and employees are expected to benefit from the flexibility permitted by the bill, although implementing regulations from the New York Department of Labor have yet to be enacted.

With respect to deductions related to recovering accidental overpayments of wages or wage advancements, the bill instructs the New York Department of Labor to issue regulations governing the periodic amount of recovery or repayment; the timing, frequency, duration and method of recovery or repayment; a requirement that notice to be provided to employees before commencing the recovery or repayment; and a requirement that employers implement procedures for disputing the amount of overpayment or repayment or seeking to delay commencement of repayment or recovery. Employers are advised to wait until these regulations are enacted before acting on the bill, and should also take care to ensure compliance with the bill’s new record keeping requirements.

The amendment is expected to be signed into law by Governor Andrew Cuomo and will become effective 60 days after enactment. The bill contains a sunset provision, which provides that the law shall expire and be deemed repealed three years after the effective date. The text of the bill is available here.

EEOC Issues New Enforcement Guidance Regarding Criminal Background Check Policies

On Wednesday, April 25, 2012, the Equal Employment Opportunity Commission (“EEOC”) issued new enforcement guidance regarding the use of criminal conviction and arrest records in employment decisions. The EEOC has had a long-standing policy that, unless job-related and justified by business necessity, a policy or practice of denying employment because an applicant has a criminal record violates Title VII. The new enforcement guidance, however, emphasizes EEOC’s presumption that consideration of a criminal history is unlawful, and undoubtedly illustrates the increased scrutiny under which EEOC will review criminal background check policies. Click here to view the new guidance on the EEOC’s website. Read More