With the increasing prominence of social media, employers have been rightfully concerned about the impact of employees’ out-of-work statements on the work place—particularly when it comes to the reputation of the employer. In the last few years, the National Labor Relations Board has held that even offensive language can be protected concerted activity [See previous Orrick blog postings on this topic from September 25, 2012 and May 16, 2013]. However, apparently there is a limit: an administrative law judge held last week that the expletive-laden Facebook posts of two youth center employees crossed a line. Read More
Lynne C. Hermle
Lynne Hermle, a Silicon Valley employment partner, is consistently recognized as one of the best employment lawyers in the country. She has a long track record of jury trial wins as well and has consistently defeated certification in class actions. Chambers USA has described her as “a fantastic lawyer and fabulous litigator.” She has been named as one of the two best employment defense lawyers in the Bay Area and one of California Top Women Attorneys (by The Recorder); as one of the Top 10 Leaders of the Pack in America (by Human Resource Executive); in the Top 25 of The Best of The Best USA (by Euromoney); one of America’s Top 50 Women Litigators (National Law Journal); and one of America’s Top 500 Lawyers and Top 500 Leading Litigators (Lawdragon).
Lynne has special expertise in the retail and tech industries. In wage-and-hour class actions, she has represented employers that include Apple, The Gap, Sears, Burlington Coat Factory, Gymboree, Spencer’s Gifts, Banana Republic, Old Navy, Williams Sonoma and Pottery Barn Kids, and Morgan Stanley, bucking the trend and consistently defeating class certification or obtaining summary judgment.
Some of her more notable engagements include the following cases.
- Class Actions. Lynne has represented several large employers in wage-and-hour class actions, including The Gap, Blockbuster and Burlington Coat Factory. Bucking the legal tide, she has defeated class certification in statewide wage-and-hour class actions for Banana Republic, Old Navy, Pottery Barn Kids and Burlington Coat Factory and has had other cases dismissed on summary judgment and other grounds.
- Discrimination. In the high-profile trial of Maghribi v. Advanced Micro Devices, Lynne obtained a quick defense verdict for her client, AMD. Plaintiff, a senior Arab Muslim executive, sought US$200 million in lost compensation in the form of lost salary, bonuses and stock options, and sought emotional distress damages, punitive damages and attorneys’ fees in a case alleging post-September 11th discrimination. After a several-week trial, the jury returned in less than two hours with a defense verdict.
- Inland Container Corp. In Thrush v. Inland Container Corp., Lynne obtained directed verdicts for Inland Container on disability discrimination, intentional infliction of emotional distress and related claims after several weeks of a federal jury trial.
- City of Tracy. In Vizza v. The City of Tracy, Lynne obtained directed verdicts for the City of Tracy and two individual defendants on all nine claims brought by the City’s former Director of Public Works, including constitutional and common law claims, after five days of jury trial in federal court.
- IBM. In Pi v. IBM, Lynne represented IBM in a hard-fought jury trial alleging claims of retaliation for sexual harassment complaints. After several weeks of trial, the jury returned a defense verdict on all claims.
- Varian. In Kern v. Varian Associates, Inc., Lynne obtained dismissal of all wrongful discharge claims asserted by plaintiff David Kern, and then obtained a verdict of more than US$3.5 million on Varian’s cross-claim for trade secret theft. Mr. Kern subsequently served time in a federal prison for that theft.
Lynne serves as an Early Neutral Evaluator for the Northern District of California and has been appointed by that court to serve as a mediator in a complex class action. In addition to training and counseling employers, she teaches classes on trial advocacy and substantive employment topics.
Before coming to Orrick, she was in-house counsel for AT&T, where she handled employment matters for a several state region.
After suffering defeat in the United States Supreme Court, Plaintiffs in Dukes et al. v. Wal-Mart Stores, Inc. returned to court in California in an attempt to certify a newly defined and smaller class of 150,000 current and former female employees. On August 2, 2013, Judge Charles R. Breyer of the United States District Court for the Northern District of California denied Plaintiffs’ Motion for Class Certification, which leaves each member of the proposed class to pursue her claims individually against Wal-Mart. Dukes v. Wal-Mart Stores, Inc., No. 3:10-CV-03005-CRB, Slip Op. at 2 (N.D. Cal. Aug. 2, 2013). Read More
Earlier this month in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), the U.S. Supreme Court held that it is permissible for defendants to “pick off” plaintiffs in FLSA collective actions. In jurisdictions that hold that an unaccepted offer of judgment fully satisfies and renders moot a plaintiff’s individual claim, a defendant can moot a collective action brought under the FLSA by simply tendering the named plaintiff a Federal Rule of Civil Procedure 68 offer of judgment. Read More
In the last several years, the enforcement of agreements to arbitrate disputes, whether between businesses or between businesses and their employees, has become a hotly contested issue in the courts. The U.S. Supreme Court issued two significant pronouncements in this area in the past few years. In 2010, in Stolt-Nielsen S.A. v. Animalfeeds International Corp., 130 S.Ct. 1758 (2010), the Court held that where an agreement to arbitrate is silent on the question of whether a plaintiff can arbitrate her claims on behalf of a proposed class of similarly situated individuals (similar to a class action lawsuit), class arbitration is not permissible. Last year, in AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011), the Court held that (1) under the Federal Arbitration Act (“FAA”), arbitration agreements are to be enforced “according to their terms”; and (2) state law rules prohibiting the use of “class-action waiver” provisions, in which a party waives his or her right to arbitrate claims on a class basis, are preempted by the FAA. Together, these cases stand for the fundamental proposition that the parties to arbitration agreements should be bound by the clear terms of such agreements, especially with respect to class arbitration issues. Read More