Trish Higgins

Of Counsel
Employment Law
Read full biography at www.orrick.com

Trish Higgins is an employment attorney with a California practice focused on complex employment litigation and counseling. Orrick’s Employment Law and 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.

Trish has extensive experience successfully defending class actions and individual employment claims, including claims of discrimination, wage-and-hour, sexual harassment, disability, retaliation and WARN Act claims. She has particular expertise representing companies in the financial services industry. Trish handles employment matters in federal and state courts, arbitrations, and administrative proceedings. She also counsels and trains employers on employment issues.

Some of Trish’s recent notable representations include:

  • In re Morgan Stanley Smith Barney Wage-and-Hour Litigation: In this multi-district litigation, Trish is defending nationwide FLSA claims challenging the exempt status of financial advisors.
  • Bloemendaal v. Morgan Stanley: A class action asserting claims of “compelled patronage” based on application of an employee trading policy. Trish obtained summary judgment on federal preemption grounds.
  • SEIU v. Medical Properties Trust: A representative WARN action based on a hospital’s change of ownership. Trish obtained summary judgment, which was affirmed by the Ninth Circuit.
  • Mass v. Thomas Weisel Partners: A wage-and-hour class action asserting claims that banking analysts were misclassified as exempt. Trish obtained summary judgment.
  • Drake v. Morgan Stanley: A wage-and-hour class action asserting misclassification and business expenses claims on behalf of financial advisors. Trish defeated class certification.
  • California Assembly: Trish provides sexual harassment training for the Members and employees of the California Assembly.

Trish is a frequent lecturer and author on employment law issues, including defending class actions, preventing discrimination claims, and sexual harassment prevention training.  Her pro bono practice includes legal representation of victims of human trafficking.

Trish Higgins

Including PAGA Representative Action Waivers in Arbitration Agreements Post-Iskanian

After the California Supreme Court’s recent decision in Iskanian v. CLS Transportation, which held that PAGA representative action waivers are unenforceable under California law, employers have struggled with whether to retain such waivers in their arbitration agreements.  The answer to whether such waivers should be retained is not as straightforward as one might expect.

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Seeking Credit for Deferred Commissions? You Might Get Declined

Last week, the California Supreme Court issued its decision in Peabody v. Time Warner Cable, Inc., deciding that employers may not apply commission payments to earlier pay periods for the purposes of establishing that an employee meets the minimum wage component under the commissioned employee exemption.

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Mind the Gap: Obama Takes New Executive Action on Pay Equity in the Workplace

Last week President Obama continued his administration’s push to tackle pay equity issues by taking executive action to put federal contractors’ compensation practices under greater scrutiny. On April 8, 2014, the President signed a memorandum and executive order designed to address race and gender-based disparities in compensation. The memorandum directs the Department of Labor (“DOL”) to propose a rule within 120 days requiring federal contractors and subcontractors to submit “summary data” on employee compensation by race and sex to the DOL using a “tool” to be developed by the agency. The executive order signed along with the memorandum bans federal contractors from retaliating against employees for discussing their compensation with each another in an effort to “enhance the ability of Federal contractors and their employees to detect and remediate unlawful discriminatory practices” in pay. Read More

Court is (Still) in Session: Updates On Three Key Employment Cases Pending Before the United States Supreme Court

Back on October 8, 2013, we highlighted three cases currently pending on the United States Supreme Court docket that employers will definitely want to follow. The cases address issues ranging from the proper interpretation of Sarbanes Oxley’s whistleblower provision to the breadth of Presidential NLRB appointment power, to what constitutes “changing clothes” under the FLSA.  Although decisions have not yet come down, important developments have taken place in all three cases. Read More

Employers Beware: You May be Liable for Your Employees’ Tortious Off-Duty Conduct during Their Commutes

In Moradi v. Marsh USA, Inc., the California Court of Appeal concluded that employees who are required to use their personal vehicles to travel to and from the office and make other work-related trips during the day are acting within in the scope of their employment when they are commuting to and from work. Read More

Orrick Submits Amicus Brief on Behalf of SIFMA Urging Fifth Circuit to Reject Two-Step FLSA Certification Procedure

Orrick, on behalf of its client, the Securities Industry and Financial Markets Association (“SIFMA”), recently filed an amicus brief in support of a petition for writ of mandamus filed by Wells Fargo in the Fifth Circuit Court of Appeals.  Wells Fargo requests vacatur of a federal district court’s order granting conditional certification of FLSA claims filed by home mortgage consultant plaintiffs seeking unpaid overtime. In its amicus brief, SIFMA argues that the court should reject the two-step certification standard applied by most district courts in FLSA actions and instead adopt a procedure that calls for meaningful certification review at the earliest feasible opportunity.  Read More