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.
- 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.
Today, 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.”
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.
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.
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.
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.
On March 16, the Equal Employment Opportunity Commission heard testimony from a variety of advocacy groups, academics and employer representatives on with regard to its proposed revisions to the EEO-1 adding W-2 pay data. Gary Siniscalco from Orrick provided testimony as an employer representative. Click here for Gary’s testimony.
Following months of waiting the UK Government has finally published its draft regulations on the new “gender pay gap reporting” requirements in the UK. On publication of the draft regulations, the UK Government has asked one final consultation question: “What, if any, modifications should be made to these draft regulations?” – And so it would appear that the draft regulations are nearing but possibly not quite in final form, pending any pertinent responses received.
The President released his 2017 budget this week. Budgets are aspirational documents that Congress rarely implements in full. The current acrimony between Congress and the Administration ensures that the President’s 2017 budget will likely remain aspirational. However, Presidential budgets and their accompanying justifications can shed light on an agency’s priorities.
On February 2, 2016, the Third Circuit affirmed the dismissal of a long-running SOX whistleblower suit filed by Jeffrey Wiest, a former accounts payable manager for Tyco Electronics. The decision is the first in which the Third Circuit has defined the “contributing factor” causation standard for SOX retaliation cases and provides helpful guidance on the issue.
In Morton v. Vanderbilt Univ., 2016 WL 52439 (6th Cir. Jan. 5, 2016), the Sixth Circuit recently held that, for purposes of the Worker Adjustment and Retraining Notification Act (“WARN Act”), employment does not end at notice of termination, but rather the employment relationship continues as long as the employee continues to be paid wages and accrue benefits.