Joseph C. Liburt

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

Joe Liburt is a Silicon Valley partner in Orrick's Employment Law and Litigation group, which was recently named Labor & Employment Department of the Year in California by The Recorder.  This award by the premier source for legal news was in recognition of the group's significant wins on behalf of leading multinational companies on today’s most complex and challenging employment law matters.

Chambers USA has consistently recognized Joe as a top employment litigator.  Joe has more than 20 years of experience representing standout companies such as Apple, Oracle and Sears in their most challenging and complex employment matters.

Class Actions. Joe has extensive class action expertise, having defeated class certification or obtained dismissal or summary judgment on claims for overtime (exemption, off-the-clock, OT rate calculation), minimum wage, vacation and personal days, meal and rest breaks, wage statements, reporting time and split shift, timeclock rounding, expense reimbursements, waiting-time penalties, Private Attorney General Act penalties, work uniform violations, failure to provide tools, discrimination, harassment and retaliation.

Individual Claims. Joe has successfully defended a variety of individual plaintiff claims, including discrimination, harassment, retaliation, wrongful termination, defamation, interference with contract, infliction of emotional distress, invasion of privacy and breach of contract. Joe has also successfully defended reductions-in-force from claims of discrimination, retaliation, and retaliation for exercising NLRA organizing rights.

ERISA & Benefits Litigation. Joe has litigated various ERISA and state law benefits claims, including claims for benefits, breach of fiduciary duty, retaliation and interference. These ERISA claims have arisen in various circumstances, including pension benefits, disability benefits, executives seeking severance benefits pursuant to change-in-control agreements after company mergers, and employees claiming wrongful termination to prevent benefits from vesting.

The following are some of Joe’s more notable representations:

Apple. Joe has represented Apple for 20+ years and successfully defended various single-plaintiff and class action cases, including the following:

  • Maria v. Apple (defeated class certification in wage-and-hour class action). 2009.
  • Otten v. Apple (discrimination and breach of contract arising out of reduction in force; summary judgment on all claims, affirmed on appeal, 2006 WL 438660)
  • Levitan v. Apple (breach of contract, fraud and negligence; summary judgment on all claims, affirmed on appeal, 2003 WL 1914274)

Sears. Joe has represented Sears in many wage-and-hour class actions, including:

  • Casida & Galvan v. Sears, 2012 WL 3260423, adopted in full, 2012 WL 3763621 (defeated class certification on all claims -- overtime based on assistant manager exemption misclassification and related claims).
  • Ortega v. Sears (defeated class certification on all claims -- off-the-clock overtime, minimum wage, tools and uniform reimbursement, itemized wage statements and waiting time penalties -- affirmed on appeal, 2011 WL 1991957)
  • Coughlin v. Sears, 2010 WL 4403089 (defeated class certification on all claims -- vacation, personal days and waiting time penalties).
  • Rodriguez v. Sears (obtained early dismissal of assistant manager exemption misclassification class action through purchase of named plaintiff’s claims in bankruptcy court). 2011.

Genentech. Joe represented Genentech in the trial of Cefalu v. Genentech, which resulted in a jury verdict in Genentech’'s favor on all claims, including disability discrimination, reasonable accommodation, interactive process, CFRA retaliation, and bonus wages. 2012.

Oracle. Joe represented Oracle and the Siebel Systems change-in-control severance plans in numerous arbitrations concerning claims for change-in-control benefits under ERISA, including Cleveland et al. v. Oracle et al., 2009 WL 5249825 (summary judgment on senior executive benefit claims).

International Paper. Joe has represented International Paper in several individual plaintiff discrimination and wage-and-hour class action matters, including Borba v. International Paper (discrimination and retaliation, summary judgment on all claims, affirmed on appeal, 217 F.3d 844, 2000 WL 521653).

IBM. Joe obtained summary judgment in Mah v. IBM, defeating numerous discrimination, wrongful termination and ERISA retaliation claims.

L.L. Nunn Trust/Deep Springs College. Joe currently represents the dissenting Trustees of Deep Springs College seeking to protect the donor’s intent set forth in the charitable trust that governs the College.

Joe advises clients on a full range of employment issues, including employee performance and termination, wage-and-hour, privacy, background checks and the Fair Credit Reporting Act (FCRA), ERISA claims administration, independent contractor, joint employment and numerous other employment issues.

Joe has written articles, spoken and trained on various employment and ERISA topics.

Joseph Liburt

Calling All California Employers: You Must Reimburse Employees for Mandatory Use of Their Personal Cell Phones Even if They Have Unlimited Minutes

A California appellate court recently held that employers are always required to reimburse employees for mandatory use of their personal cell phones, even if they do not incur any additional expense for doing so.  The case is Cochran v. Schwan’s Home Services Inc., Court of Appeal of the State of California, Second Appellate District, Divisions Two, Case No. B247160 (August 12, 2014).  A copy of the opinion can be found here.

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Check This [Box] Out: Ban the Box Legislation Continues to Gain Momentum

An increasing number of cities, counties and states have passed laws restricting employers from inquiring about a job applicant’s criminal background, giving momentum to the “ban the box” movement.  The term “ban the box” refers to questions on an employment application that ask a job applicant about past convictions.  Proponents of the movement say that such legislation will help remove unfair employment barriers to job applicants with criminal histories.

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From D-Day to Afghanistan: Honoring Our Veterans by Reemploying Them

Seventy years ago, on June 6, 1944, the Allies’ liberation of Europe began with D-Day. Anyone who has had the privilege to travel to Saint-Laurent-sur-Mer in France and walk Omaha Beach and the surrounding area is struck by the incredibly steep and intimidating terrain faced by anyone approaching from the sea. Reentering the civilian workforce after completing military service in Iraq or Afghanistan should pose no such challenge. Read More

De Minimis Defense Closes Shop on Starbucks Barista’s Off-the-Clock Claim in the Central District of California

On March 7, 2014, Judge Feess of the Central District of California granted Defendant Starbucks’ motion for summary judgment on Plaintiff’s proposed class claims for unpaid wages under the California Labor Code. Plaintiff alleged that Starbucks failed to pay him for the brief time he spent closing the store after he clocked out at the end of every closing shift. His alleged off-the-clock closing duties included closing out of the store’s computer system, activating the alarm, walking out of store, locking the door, walking employees to their cars and staying with co-workers when they waited for rides. He also occasionally moved the store’s patio furniture inside and reopened the store for an employee who forgot personal belonging in the store. Read More

OHSA’s Plan to Air Employers’ Potentially Dirty Laundry Online

Trying to keep your illness and injury reports low profile? According to new rules proposed by the Occupational Safety and Health Administration (“OSHA”), not under their watch! At an estimated cost of $10.5 million per year to employers, OSHA’s three new proposed rules will impact approximately 480,000 employers by making their injury and illness records publicly available for the first time. See Improve Tracking of Workplace Injuries and Illnesses, 78 Fed. Reg. 67273, 67275 (proposed Nov. 8, 2013) (to be codified at 29 C.F.R. pt. 1904). Read More

Further Down the Rabbit-Hole we go: California’s Troubling Treatment of Incentive-Based Compensation Systems

On July 17, 2013, the California Supreme Court denied review of the Second Appellate District’s decision in Gonzalez v. Downtown LA Motors, 2013 Cal. App. LEXIS 257 (Cal. App. 2d Dist. Mar. 6, 2013), which addressed minimum-wage requirements for piece-rate workers. The Court of Appeal held that the employer had to pay a separate hourly rate of at least minimum wage during work time when piece-rate employees are engaged in compensable activity that does not directly produce piece-rates.  Read More

Oxford Health Plans LLC v. Sutter: You Get What You Bargain For, Including the “Good, Bad, or Ugly”

Ever have that feeling that your arbitrator just doesn’t understand you? You may be right, but there’s not much you can do about it. A recent unanimous ruling by the United States Supreme Court should encourage employers to review the language in their arbitration agreements to ensure clarity on the issue of class arbitration. In Oxford Health Plans LLC v. Sutter, No. 12-135, slip op. at 4-5, 8-9 (U.S. June 10, 2013), the Supreme Court reiterated that parties who agree to arbitration and ask the arbitrator to decide an issue are stuck with the “good, bad, or ugly” decision of the arbitrator. Even where, as in this case, the arbitrator makes a dubious decision that the parties’ contract allows class arbitration, Federal Arbitration Act § 10(a)(4) does not allow a court to second-guess that decision.

Sutter, a pediatrician, and Oxford Health Plans, an insurance company, entered into a contract for services that included the following arbitration clause: “[n]o civil action concerning any dispute arising under this Agreement shall be instituted before any court, and all such disputes shall be submitted to final and binding arbitration . . . .” Id. at 1-2. Later, Sutter brought suit in state court on behalf of himself and a proposed class of other doctors alleging that Oxford Health Plans had violated their contracts and various state laws. Id. Upon Oxford Health Plans’ motion, the case was compelled to arbitration. Id. at 2. Critically, the parties agreed that the arbitrator should decide whether their contract authorized class arbitration, and the arbitrator determined that, based on the terms of the clause quoted above, it did. See id. at 2, 3. Oxford Health Plans brought a motion in federal court arguing the arbitrator’s decision should be vacated on the ground that he had “exceeded [his] powers” under Federal Arbitration Act § 10(a)(4). Id. Read More

California Supreme Court Eliminates Damages in FEHA Discrimination Cases Where Employer Proves Mixed Motive Defense

Earlier this month, the California Supreme Court issued a ruling clarifying details of the “mixed-motive” defense applicable to discrimination claims under the California Fair Employment and Housing Act (“FEHA”). Harris v. City of Santa Monica, Case No. S181004 (Cal. Feb. 7, 2013). The Harris opinion is undoubtedly positive news for employers and provides much-needed guidance to trial courts in California handling mixed-motive cases (i.e., cases where legitimate and illegitimate factors motivated the decision). Read More

2013 Updates to the FEHA California Pregnancy Regulations

Amendments to California’s pregnancy regulations became effective on December 30, 2012, creating many new responsibilities for employers. While employers should take note of all of the amended regulations, some of the most significant changes are discussed below. Read More