Gary R. Siniscalco

Senior Counsel
Employment Law
Read full biography at www.orrick.com

Gary Siniscalco, based in the San Francisco office, is a member of the employment law group. Orrick’s Employment Law and Litigation 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.

Mr. Siniscalco has developed special expertise in equal opportunity, affirmative action (OFCCP) compliance, wrongful discharge, wage-and-hour matters and in working with companies on cross-border employment issues. His practice involves both employment litigation and counseling. He has handled numerous class actions, pattern and practice cases and government audits, in court and before the EEOC and Department of Labor.

Gary is widely recognized as one the top management employment lawyers in the United States by every major ranking organization, including Chambers USA, the National Law Journal, Best of the Best USA (Euromoney), Super Lawyers and Who’s Who Legal. Among management employment lawyers in the United States and Europe, Gary is ranked in the top 10 of Who’s Who international management labor and employment lawyers and is described as “absolutely superb.”

Gary’s extensive practice in class actions includes litigation, consent decree strategies and preventive advice. Gary has also been designated as an expert or retained as special counsel in several federal court class actions. Gary’s counseling practice extends beyond the United States and includes assisting U.S. multinational companies in dealing with employee issues in foreign jurisdictions. He has written numerous articles on employment law. Most recently, he is Management Editor-in-Chief of a two-volume treatise--Restrictive Covenants and Trade Secrets in Employment Law: An International Survey (BNA, 2010). Gary also was co-author of "The Law of Employment Discrimination from 1985-2010," Journal of the ABA Labor & Employment Law Section, Vol. 25, No. 3 (Spring 2010).

Some of Gary’s current representations include several EEOC commissioner’s charge and individual claims of race and national origin discrimination in use of criminal background checks against a major financial services company; a commissioner’s charge alleging race discrimination in hiring and promotions; a multi-employee race promotion and pay case against a major retail store chain; EEOC Equal Pay Act investigations; and OFCCP systemic pay and promotion audits.

Prior to joining Orrick, Gary served as regional counsel and senior trial attorney for the U.S. Equal Employment Opportunity Commission in San Francisco.

Gary Siniscalco

An Attorney is an Attorney is an Attorney? Not So Fast Says Second Circuit, Shutting Down EEOC Equal Pay Act Claim

The EEOC suffered another fatal blow to its systemic discrimination initiative on Monday when the Second Circuit held that the Commission’s Equal Pay Act (EPA) complaint against the New York Port Authority was too barebones to survive.

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At Long Last, OFCCP Announces OMB Approval of a New Scheduling Letter and Itemized Listing

More than three years after the Office of Federal Contract Compliance Programs (OFCCP) first announced its intent to issue a new Scheduling Letter and Itemized Listing, the Agency finally has obtained approval to do so from the White House Office of Management and Budget (OMB).  The OFCCP’s Scheduling Letter provides a contractor with notice of its selection for a compliance evaluation (audit), and the Itemized Listing constitutes OFCCP’s standard initial request for submission of the contractor’s Affirmative Action Plan and supporting personnel activity and compensation data.  OFCCP announced the OMB approval in a September 30, 2014 Notice, and published the final versions of the Scheduling Letter and Itemized Listing on October 1, 2014.

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Obama Executive Order Places New Burdens and Restrictions on Federal Contractors

In an unwelcome, mid-summer surprise for the business community, President Obama signed the Fair Pay and Safe Workplaces Executive Order on Thursday July 31, 2014 requiring federal contractors to report violations of federal and state labor and employment laws and prohibiting certain contractors from requiring that employees arbitrate disputes alleging violations of Title VII or claims for sexual assault or harassment.  The Executive Order also requires federal contractors to provide relevant information about hours worked and overtime on employee paychecks.

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Freedom of Watercooler Speech? NLRB Invalidates Employer’s No-Gossip Policy

Do mean-spirited watercooler talk, negative gossip, and backbiting have an effect on employee morale that companies would like prevent if they could? In many instances, probably yes. Why don’t employers create “no gossip” policies aimed at improving morale in the workplace? One company did implement such a policy and it didn’t work out so well. Read More

Germany: Bonus Cap for Bank Staff Introduced

In Germany, remuneration of managers in general has increasingly come into public and political focus.

Over the last years, the German legislator enacted several law reforms concerning managers’ pay. Very recently, the German Banking Act (Kreditwesengesetz “KWG”) was amended effective January 2014, to provide for further restrictions on bonus payments for managers and employees in the banking industry. A reform of the German Stock Corporation Act (Aktiengesetz “AktG”) however, shifting the authority of determining the remuneration of board members to the shareholders’ meeting was stopped, but presumably only for the time being. Read More

Arbitration Wars: The California Supreme Court Strikes Back In Sonic II

On October 17, 2013, the California Supreme Court revisited the enforceability of arbitration agreements in California. The Court released its decision Sonic-Calabasas Inc. v. Moreno (Sonic II). In that 5 – 2 ruling, the California Supreme Court reversed its prior decision to strike down an arbitration agreement on the ground of FAA preemption, but remanded the case for analysis of the enforceability of the arbitration agreement under an unconscionability analysis.  Read More

Orrick’s Global Employment Law & Litigation Newsletter – Fall 2013

Welcome to the Fall 2013 edition of Orrick World: A Quarterly Report of Global Employment Law Issues for Multinationals. We have designed this newsletter to provide our multinational clients with quarterly updates on important employment law issues across the globe. Read More.

You Can’t Get Paid for Sleeping on the Job

Employees who live in employer-provided housing as part of their job may not so easily claim wages for 24-hour periods of work under California’s Wage Orders, according to a recent opinion, Mendiola v. CPS Security Solutions, Inc., Case No. B245019 (July 3, 2013). Mendiola involved a class of security guards who were employed at various constructions sites across California. On weekdays, the guards were scheduled from 5:00 to 7:00 a.m. and from 3:00 to 9:00 p.m. On weekends the guards patrolled from 5:00 a.m. to 9:00 p.m. From 9:00 p.m. to 5:00 a.m. on weekends and weekdays, the guards were to remain on call at the construction site where they were provided trailer residences for their exclusive use during the on-call time. Read More

If You Can’t Say Anything Good about Someone, Well, Keep Talking – The EEOC Challenges the Legality of Non-Disparage Agreements

As the saying goes, if it didn’t end badly, it never would have ended. That is often the case for former employees who no longer simply gripe to spouses or close friends about their former employers. Disgruntled former employees and disengaged current employees often take to social media in railing on the Company for everything from a toxic work environment to lousy product to scaling back employee perks. Read 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