James H. McQuade

Of Counsel
Employment Law
(212) 506-5198
jmcquade@orrick.com
Read full biography at www.orrick.com

Jim McQuade, of counsel in the New York office, is a member of the Employment Law Group. He represents employers in a broad range of employment matters.

Mr. McQuade has successfully defended employers in numerous federal and state court litigations, and in administrative proceedings involving claims of discrimination, sexual harassment, wrongful termination, retaliation, Sarbanes-Oxley Act whistleblowing, defamation and other employment-related claims. He also has successfully defended a number of financial service firms in employment-related arbitrations before the AAA, JAMS, FINRA and other arbitration forums. He regularly counsels employers on a wide variety of employment-related matters, including creating and implementing human resource policies and procedures, negotiating and drafting executive employment contracts and other agreements, conducting internal investigations and implementing reductions in force. 

In addition, Mr. McQuade has extensive experience handling matters involving misappropriation of trade secrets and the enforcement of non-competition/non-solicitation agreements.

James McQuade

Posts by James H. McQuade

Wage and Hour

California Supreme Court Allows See’s Candy Time Rounding Decision to Stand

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Earlier last month, the California Supreme Court denied petitions to review and depublish the California Court of Appeal for the Fourth District’s decision in See’s Candy Shops, Inc. v. Superior Court, 210 Cal. App. 4th 889 (2012), a case of first impression on whether an employer can round an employee’s clocked time under California law. As a result, the Court of Appeal’s decision on the topic of employers’ rounding of employee time entries remains the law of the land in California.

On October 29, 2012, the California Court of Appeal confirmed that California law—like federal law—permits an employer to implement a policy rounding its employees’ recorded time so long as the policy is neutrally applied and does not systematically under-compensate employees for time worked.

The plaintiff in See’s Candy hoped to blunt this helpful precedent by asking the California Supreme Court to depublish the Court of Appeal’s ruling. However, thanks to the Supreme Court’s denial of the plaintiff’s petitions, employers and courts may continue to look to See’s Candy for guidance in the implementation of their timekeeping policies.

Trade Secrets

Supreme Court Reaffirms Enforceability of Arbitration Agreement in Noncompetition Dispute

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In a succinct opinion issued on November 26, 2012, the Supreme Court delivered a stern warning to state courts that fail to enforce arbitration clauses accompanying noncompetition agreements. In Nitro-Lift Technologies, L.L.C. v. Howard, 568 U.S. ____ (2012), the employment contracts between two energy-sector employees and their employer contained a two-year noncompetition provision and a mandatory arbitration clause. After the employees joined a competitor, the employer commenced an arbitration proceeding, prompting the employees to bring suit in Oklahoma state court seeking an injunction preventing enforcement of the noncompetition agreements. Despite the mandatory arbitration clauses, Oklahoma’s highest court declared the noncompetition agreements unenforceable under a state law prohibiting restraints on an employee’s ability to work in the same industry. Read More

Whistleblower

Federal Court Decisions Permit Two Dodd-Frank Whistleblower Cases to Proceed

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Two federal district courts recently issued decisions adopting a broad interpretation of the anti-retaliation provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) and allowed Dodd-Frank whistleblower claims to proceed past motions to dismiss. Significantly, these cases stand for the proposition that to be protected as a whistleblower under the retaliation provision of Dodd-Frank, an individual does not have to meet the definition of a whistleblower for purposes of obtaining a bounty under Dodd-Frank and in particular, does not necessarily have to make a disclosure to the Securities and Exchange Commission (the “SEC”) in the manner required in connection with the bounty provision of the statute. While the issue is far from settled as Dodd-Frank retaliation cases are just beginning to work their way through the federal courts, these decisions could contribute to further increases in the number of Dodd-Frank whistleblower retaliation claims filed against employers. Read More

Wage and Hour

U.S. Supreme Court To Decide Whether Class Action Plaintiffs Can Use Stipulations To Avoid Jurisdiction Under The Class Action Fairness Act

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The United States Supreme Court recently granted certiorari to review whether class action plaintiffs can avoid federal court jurisdiction under the Class Action Fairness Act (“CAFA”) by stipulating that their damages do not exceed the federal jurisdictional prerequisite.  This issue is particularly significant to employers because they frequently rely on the CAFA to remove cases to federal court when hit with wage-and-hour and other employment class action lawsuits.  The CAFA generally permits class action defendants to remove cases with minimal diversity to federal court where the amount in controversy exceeds $5 million. Read More

Employment Law

The NLRB Finds That Social Media Policy Violates The National Labor Relations Act

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In its first ruling on an employer’s social media policy, the National Labor Relations Board found that Costco Wholesale Corporation’s social media policy in its employee handbook violated the National Labor Relations Act.  Among the policy provisions reviewed, the Board analyzed Costco’s policy prohibiting employees from posting electronically statements that damage the company or any person’s reputation.

In its September 7, 2012 opinion, the Board stated that the “appropriate inquiry” is whether the policy would “reasonably tend to chill employees in their exercise of their Section 7 rights[,]” which provides employees with the right to engage in concerted activity.  While the Board acknowledged that Costco’s policy did not explicitly reference Section 7 activity, the Board did find that the policy’s broad prohibition on statements “clearly encompasses concerted communications protesting [Costco’s] treatment of its employees.”  The Board specifically noted that there was nothing in Costco’s policy that even suggested the exclusion of protected communications.  Accordingly, the Board concluded that Costco’s policy had a reasonable tendency to inhibit employees’ protected activity and thus violated the National Labor Relations Act.