Mike Delikat

Partner

New York


Read full biography at www.orrick.com
Michael Delikat, a partner in the New York office, serves as Chair of Orrick’s Global Employment Law Practice, which has employment law teams in the European Union, Asia as well as the United States.

He also is the founder of the firm’s Whistleblower Task Force. He previously served as the Managing Director of Orrick’s Litigation Division.

Under Mike's leadership, Orrick’s Employment Law & 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. The practice group has also been chosen as one of the top national employment law practices by Law 360.

He represents a broad range of major corporations in all facets of labor and employment law. Mike has an active trial, arbitration and appellate practice and handles a number of high-visibility class action and impact cases. Mike has extensive experience with litigation arising from trade secret misappropriation and the enforcement of post-employment restrictions, EEOC systemic investigations and litigations, wage-and-hour collective actions and other class actions based on gender and race, with particular expertise representing companies in the financial services industry.

Representative clients:

  • AllianceBernstein. Mike has represented this client on multiple matters in court and in arbitration, including a successful defense of an ERISA class action.
  • Facebook. Mike created a single contact point solution for all of this client’s employment law needs outside the United States, which now is managed through Orrick’s unique Global HR Solutions platform.
  • PG&E Corporation. Mike obtained a complete defense verdict in a jury trial brought in the Maryland state court seeking to hold PG&E liable for multimillion dollar bonuses claimed by energy traders.
  • Carrols Corporation. Mike successfully represented Carrols Corporation, the largest holder of Burger King franchises, in the largest pattern and practice systemic class action for sexual harassment ever brought by the EEOC in EEOC v. Carrols.
  • Securities Industry and Financial Markets Association. This client regularly looks to Mike for representation in filing amicus briefs on issues of paramount importance to SIFMA and its members.
  • Microsoft. Mike regularly advises this client on matters involving the enforcement of post-employment restrictions and restrictive covenants.
  • Citigroup. Mike regularly represents this client on a variety of employment disputes.
  • AIG Corporation. The Board of Directors of this company retained Mike to conduct a high-profile internal investigation of one of its senior executives.
  • Wyeth. Mike successfully defended Wyeth in a two-week jury trial in federal court alleging race discrimination. He also represented this client on several Sarbanes-Oxley whistleblower matters, including the successful defense of Livingston v. Wyeth, which was the first U.S. Court of Appeals decision on what constitutes protected activity under the whistleblower provisions of SOX.
  • Gannett/USA Today. Mike has represented this client on a variety of post-employment restriction and trade secret litigation.
  • Oracle. Mike represented Oracle in multiple litigations, including a preliminary injunction trial involving efforts by a competitor to enforce its noncompete agreements.
  • Roche. Mike successfully represented Roche in several wage-and-hour collective actions which challenged the classification of pharmaceutical representatives as exempt from the overtime provisions of the Fair Labor Standards Act.
  • Moody’s Investors Service. Mike defended Moody’s in a 400-plaintiff Title VII class action in the Southern District of New York alleging race and national origin discrimination in promotion.
  • Major Law Firm Representation. Mike represents a number of major law firms on a variety of matters relating to their partners, associates and staff. He obtained a seminal decision in Weir v. Holland & Knight, which held that law firm partners are not covered by statutory discrimination protections.
  • Time Warner, Inc. Mike obtained summary judgment on behalf of this client in a discrimination case brought by an in-house lawyer, affirmed on appeal by the Second Circuit, establishing the standard for retaliation claims in that Circuit.

Posts by: Mike Delikat

From Swimsuits to Grass Fed Beef: A New Direction for Labor?

The United States Senate is slated to consider Andrew (Andy) Puzder, CEO of CKE Restaurants, as the next Secretary of Labor (“DOL”). Although his confirmation hearing which was set for February 7, 2017 has been delayed reportedly to give Mr. Puzder additional time to complete government ethics disclosures, Mr. Puzder has stated that he is fully committed to becoming Secretary of Labor and says that he is “looking forward to [his] hearing.”[1]

CKE Restaurants operates “fast food” restaurants known as Carl’s Jr. west of the Rockies and Hardee’s in the east. The restaurants, perhaps better-known for their commercials featuring women models in skimpy swimsuits, began a new advertising campaign last fall focusing on its employees talking about the quality of the food offerings — burgers made with grass fed beef, hand-breaded chicken tenders, hand-scooped ice cream, and scratch made biscuits.  If confirmed, Mr. Puzder in all likelihood, would also steer the DOL in a new direction with a decidedly more business-friendly approach than his predecessor, Tom Perez.  We consider what would a Puzder DOL would likely focus on. READ MORE

Whistle While You Work: SEC Whistleblower Office Releases Its 2016 Annual Report

The SEC released its Fiscal Year 2016 Annual Report (the “Report”) to Congress on the Dodd-Frank Whistleblower Program on November 15, 2016. The Report analyzes the tips received over the last twelve months by the SEC’s Office of the Whistleblower (“OWB”), provides additional information about the whistleblower awards to date, discusses the OWB’s efforts to combat agreements that chill whistleblowers, and describes the OWB’s recent activity in the anti-retaliation arena.

Breakdown of Tips Received in FY 2016

The OWB reported a modest increase in the number of whistleblower tips and complaints that it received in 2016–4,218 tips in 2016 compared to 3,923 tips in 2015. Overall, the 2016 whistleblower tips were similar in number and type of whistleblower tips reported in 2015. As in 2015, the most common types of allegations in 2016 were Corporate Disclosure and Financials (22%), Offering Fraud (15%), and Manipulation (11%). Most whistleblowers, however, selected “Other” when asked to describe their allegations.

The OWB received whistleblower tips and complaints from all 50 states, the District of Columbia, and Puerto Rico. Domestically, the largest number of whistleblower complaints and tips were from California (547), New York (296), Florida (239), and Ohio (230). Additionally, the OWB received whistleblower tips from individuals located in 67 foreign countries. Of these, the countries from which the largest number of tips originated were Canada (68), the United Kingdom (63), Australia (53), the People’s Republic of China (35), Mexico (29), and India (20), with Germany, Ireland, and Taiwan being other countries from which the SEC received more than 10 tips.

More Questions for Employers As DOL Appeals Preliminary Injunction of Overtime Rules

On December 1, 2016, the date that the Department of Labor regulations were set to become effective, the government filed a notice of appeal [link to http://dciconsult.com/wp-content/uploads/2016/12/DOL-appeal.pdf] of the November 22, 2016 the United States District Court for the Eastern District of Texas’s Order granting a nationwide preliminary injunction “from implementing and enforcing” the DOL’s new overtime regulations. Those regulations would have raised the minimum salary level for exempt employees from $455 per week ($23,660 annually) to $913 per week ($47,476 annually). The Court’s ruling was based, in part, on its holding that the DOL exceeded its delegated authority by changing the salary basis test at a level that was contrary to Congress’ intent that executive, administrative and professional employees be exempted from coverage of the FLSA. A full copy of the injunction order can be found here. In the wake of the Court’s ruling and now uncertain future regarding the DOL’s new overtime rules, we thought it would be helpful to provide some interim guidance on frequently asked questions we have received since the Court’s ruling.  READ MORE

Top Ten Employment Regulations or Initiatives Employers Want Trump to Dump or Fix

After the Obama administration’s employee friendly policies, employers will have a wish list of changes they believe a Trump administration would favor.  Here are ten items that should be at the top and why employers want to see action. READ MORE

Blacklist Regs Get a “Preliminary” Black Eye from the District Court in Texas

On October 24, 2016, U.S. District Court Judge Marcia Crone of the Eastern District of Texas granted a nationwide preliminary injunction enjoining implementation of the Fair Pay and Safe Workplaces regulations.  In addition to enjoining implementation of the reporting obligations, the court also enjoined enforcement of the pre-dispute arbitration ban on Title VII claims.

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SEC Bounty Hunters Take Heart: SEC Fines Company $265,000 For Using Severance Agreements That Provided a Waiver of Any Monetary Recovery For Filing a Tip

shutterstock_150166427_200x150Today, the SEC announced that an Atlanta-based company, BlueLinx Holdings, is settling charges that its severance agreements contained provisions that it in its view might impede employees from communicating directly with the SEC about possible securities law violations. The company has agreed to pay a $265,000 sanction and to engage in other corrective actions as described below.

The specific provision at issue provided:

  • Employee further acknowledges and agrees that nothing in this Agreement prevents Employee from filing a charge with…the Equal Employment Opportunity Commission, the National Labor Relations Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission or any other administrative agency if applicable law requires that Employee be permitted to do so; however, Employee understands and agrees that Employee is waiving the right to any monetary recovery in connection with any such complaint or charge that Employee may file with an administrative agency. (Emphasis added.)

With respect to this bounty waiver, the Commission stated that “by requiring its departing employees to forgo any monetary recovery in connection with providing information to the Commission, BlueLinx removed the critically important financial incentives that are intended to encourage persons to communicate directly with the Commission staff about possible securities law violations.”

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Germany’s Financial Regulator Establishes New Whistleblower Platform

Last week, Germany’s Financial Supervisory Authority (BaFin) unveiled a centralized platform for receiving whistleblower complaints, including anonymous complaints, of alleged violations of supervisory provisions within the financial sector.  The move appears to represent a shift in German ideology toward a more favorable view of anonymous reporting, which for many years was discouraged in Germany and more broadly in the EU due to the risk of “organized systems of denouncement.”  Under the new program, whistleblowers may submit reports in writing (on paper or electronically), by phone (with or without recording the conversation), or verbally.  BaFin’s press release announcing the program states that it will make the anonymity of whistleblowers a “top priority,” and that it will not pass on the identity of whistleblowers to third parties.  The program is “aimed at person with a special knowledge of a company’s internal affairs – for example because they are employed there or have some other contractual relationship or relationship of trust with the company.”

BaFin was required to implement this new platform due to an amendment to the German Act on Financial Services Supervision.  Notably, the Act only applies to the financial services sector, not including external accountants, tax consultants and attorneys. It provides that employees working in the financial services sector may not be held liable for reporting potential or actual breaches of law under either employment law or criminal law, unless the report was false or grossly negligent.

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Brexit: What Does it Mean for Employers in the U.K.?

We set out below our best guess on where this leaves employees, management and HR in the UK.

Firstly as we have all heard repeatedly today, nothing is going to change immediately and that is the same for employment law.  It will be years before any changes are made and for the time being, everything remains the same and critically, no one has to leave.

Much of our employment law is just that – employment law driven solely by the UK.  We then have laws that have been enacted into UK law as a result of European directives – so those laws are the ones that may, at some point in the future, be targeted.  Our guess at Orrick is that changes where they happen will be focused on consultation rights, holiday pay and working time.  Worker involvement has never had the same traction in the UK that it has with our European counterparts and the UK has always viewed employee consultation with a degree of skepticism.  For this reason, we think it may eventually be a focus for change.

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Digging Into the New Overtime Regulations

In 2015, the Department of Labor (“DOL”) proposed substantial changes to the minimum salary level requirements, sought input on whether bonuses and incentives should be included in meeting the salary level test and considered changing the duties test to establish overtime eligibility. Taken together, these proposed changes would have had a drastic effect on the obligation of employers to pay overtime. On May 18, 2016, DOL issued its Final Rules and employers have until December 1, 2016 to comply. Overall, the changes strike a middle ground as DOL declined to adopt the more restrictive California 50% duties test. However, doubling the salary level threshold and other changes present significant economic and compliance challenges for employers. Below is a summary of key takeaways and steps employers should consider to address these changes and ensure compliance.

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There’s No Longer an “App for That” in Austin: Lyft and Uber Pull Out Over Driver Fingerprinting Requirements

Rideshare companies Lyft and Uber announced on May 9 that they were no longer offering their services in Austin, Texas, after voters there rejected a proposed ordinance that would have eliminated fingerprint-based background checks for drivers.  In a Saturday election, 56 percent of Austin voters, despite what some have called confusing ballot language, rejected the proposed ordinance, known as “Proposition 1,” which was supported by the companies.

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