Two new Dodd-Frank decisions over the last week contain mixed results for employers. Read More
Mike Delikat, a partner in the New York office, serves as Chair of Orrick's Global Employment Law Practice and previously served as the Managing Director of Orrick's Litigation Division.
He represents a broad range of major corporations in all facets of labor and employment law. Mr. Delikat has an active trial, arbitration and appellate practice and handles a number of high-visibility class action and impact cases. Mr. Delikat has extensive experience with issues arising from trade secret misappropriation and the enforcement of post-employment restrictions, wage-and-hour collective actions and other class actions based on gender and race, with particular expertise representing companies in the financial services industry. He is also called upon by a number of major corporations to handle high exposure internal investigations.
He currently has an active practice representing a number of major corporations in the defense of Sarbanes-Oxley Act and other whistleblower claims and is the co-author of the only extensive treatise published on whistleblowing and internal investigations, Corporate Whistleblowing in the Sarbanes-Oxley/Dodd-Frank Era.
- AllianceBernstein. Mr. Delikat has represented this client on multiple matters in court and in arbitration.
- Facebook. Mr. Delikat leads a global team that represents Facebook on all of its employment law matters throughout the world.
- PG&E Corporation. Mr. Delikat obtained a complete defense verdict in a jury trial brought in the Maryland state court seeking to hold PG&E liable for multi-million dollar bonuses claimed by energy traders.
- JP Morgan Chase. Mr. Delikat has represented this client on a variety of employment litigation matters including the enforcement of post-employment restrictions involving litigation in the United States and the United Kingdom.
- Carrols Corporation. Mr. Delikat successfully represented Carrols Corporation, the largest holder of Burger King franchises, in obtaining summary judgment against the EEOC after six years of litigation in the largest pattern and practice 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 Mr. Delikat for representation in filing amicus briefs on issues of paramount importance to SIFMA and its members.
- AIG Corporation. The Board of Directors of this company retained Mr. Delikat to conduct a high profile internal investigation of one of its senior executives.
- Wyeth/Pfizer. Mr. Delikat successfully defended Wyeth in a two-week jury trial in federal court alleging race discrimination at its Pearl River facility. He also represented this client on several Sarbanes-Oxley whistleblower matters, including Livingston v. Wyeth, which was the first U.S. Court of Appeals decision on what constitutes protected activity under the whistleblower provisions of SOX.
- Oracle. Mr. Delikat represented Oracle in multiple litigations, including a preliminary injunction trial involving efforts by a competitor to its enforce non-compete agreements.
- Roche. Mr. Delikat 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. Mr. Delikat 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. Mr. Delikat represents a number of major law firms on a variety of matters relating to their partners, associates and staff.
Mr. Delikat is published and quoted frequently on a variety of employment law issues in major academic and business publications and is a frequent speaker at national and international programs.
October 2013, the San Francisco Board of Supervisors unanimously approved the “Family Friendly Workplace Ordinance,” which if signed by the mayor will expand protections for workers with family care-giving duties and require employers to take requests for flexible work arrangements seriously. The measure creates a new, “only in San Francisco” protected category of workers that employers will likely have to keep in mind when making workplace decisions, as Mayor Ed Lee has indicated his intention to sign the measure into law. Read More
Two victories for employers last week in Dodd-Frank and SOX whistleblower cases may provide a basis for at least a sliver of optimism among employers and whistleblower defense lawyers hammered by a recent series of employee-favorable decisions under the two main federal statutes covering whistleblowing activity. Read More
Today the SEC announced that it is issuing a whistleblower award of over $14 million to a whistleblower who provided information that resulted in the recovery of investor funds. The significant whistleblower award comes after many critics have questioned the success of the SEC’s whistleblower award program which, to date, has only issued two much smaller awards since the program’s inception in 2011. The first award payment was issued in August 2012 for approximately $50,000. The second award, paid to three whistleblowers for information that stopped a sham hedge fund, has paid out approximately $25,000 with an expected total payout of $125,000. Read More
Employers frequently ask whether the portion of an employment-related settlement allocated to attorneys’ fees must be treated as wages and subjected to income and employment tax withholding and Form W-2 reporting where a plaintiff’s claim is based on statute that provides for the recovery of attorneys’ fees (a so-called “fee-shifting statute”). The answer was not entirely clear based on conflicting guidance from the IRS. Fortunately the IRS recently confirmed its view in LAFA 20133501F (July 11, 2013) that where a plaintiff’s claim is based on a fee-shifting statute, the amount of the settlement that is clearly allocated to attorneys’ fees and that is reasonable in amount is not wages for employment tax purposes. Read More
A whistleblower who took sensitive company data from his employer and turned it over to the IRS has won his retaliation claim at the Department of Labor under the Sarbanes-Oxley Act’s (“SOX”) whistleblower protection provisions. In Vannoy v. Celanese Corp., ALJ Case No. 2008-SOX-00064, ARB Case No. 09-118 (ALJ July 24, 2013), an Administrative Law Judge was presented with the question of whether Vannoy’s removal of highly sensitive company data and transmission of that data to the IRS constituted protected activity under SOX. Vannoy, who was formerly employed as the administrator of Celanese’s corporate credit card program, first allegedly complained internally that the company “misstated their financial records and underestimated their required tax burden potentially in millions.” Vannoy sought legal counsel and eventually reported the company’s alleged accounting misconduct to the IRS. Read More
On July 17, 2013, the Fifth Circuit issued the first circuit court decision interpreting Dodd-Frank’s anti-retaliation provision. In Asadi v. G.E. Energy (USA), L.L.C., the Fifth Circuit held that, to be protected under Dodd-Frank’s anti-retaliation provision, an individual must be a “whistleblower,” which is defined by the statute as an individual who has made a report to the SEC. Notably, this holding directly conflicts with the SEC’s regulations interpreting the Act, as well as five district court decisions that had all held that employees who make internal reports to company management are protected under Dodd-Frank even if they did not make reports to the SEC. Rejecting these analyses, the Fifth Circuit based its decision on the plain wording of the statute, which it found to be unambiguous in protecting only “whistleblowers” as defined by the Act. Read More
Under the Affordable Care Act, employers subject to the Fair Labor Standards Act must provide a “Notice of Coverage Options” to each employee. The purpose of this Notice is to inform employees that they may obtain health insurance through their states’ Health Insurance Marketplace. For current employees, the Notice must be distributed before October 1, 2013. For new employees, the Notice must be given within 14 days after work begins. Read More
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
In May, another New York federal district court ruled that an employee need not report a disclosure directly to the Securities and Exchange Commission (“SEC”) to be afforded the protections under the anti-retaliation provisions of the Dodd-Frank Act, but that internal disclosures within a company are covered. Read More