David B. Smith

Managing Associate

Washington, D.C.


Read full biography at www.orrick.com
David Smith, a Managing Associate based in the firm's Washington office, focuses his practice on employment litigation and counseling.

He has also defended class and collective actions under state and federal laws, including claims for overtime, minimum wage, meal and rest break penalties, Private Attorneys General Act penalties, and expense reimbursements.

David regularly advises clients on a variety of employment-related issues, including human resources policies and procedures, severance agreements, audits, non-competition agreements, and regulatory issues. His clients include leading companies in the technology, financial services and retail sectors.

During law school, David participated in the University of Virginia School of Law’s Employment Law Clinic. Prior to law school, David worked as a litigation paralegal for two law firms in Washington, D.C.

Posts by: David B. Smith

All Aboard! California Law Requires More Female Representation on Boards of Directors

As part of its effort to close gender-based pay gaps, California will now require companies to increase female representation on boards of directors.

Currently, one in four publicly held corporations in California have no women on their boards of directors. SB 826, which Governor Jerry Brown signed into law at the end of September, requires that all publicly held corporations based in California have at least one woman director by December 31, 2019. That is not the end of the requirements; by December 31, 2021, companies with five authorized directors must have a minimum of two female board members, and companies with at least six directors must have a minimum of three females on the board. The California Secretary of State will publish the names of compliant and non-compliant companies on an annual basis. In addition to the “name and shame” provisions, non-compliant companies face fines of $100,000 for the first violation and $300,000 for subsequent violations.

The sponsors of the bill, Sens. Hannah-Beth Jackson (D-Santa Barbara) and Toni Atkins (D-San Diego), stated when introducing the bill: “More women directors serving on boards of directors of publicly held corporations will boost the California economy, improve opportunities for women in the workplace, and protect California taxpayers, shareholders, and retirees. . . . Yet studies predict that it will take 40 or 50 years to achieve gender parity, if something is not done proactively.”  The bill cites numerous independent studies stating that publicly held companies perform better in terms of profitability, productivity, and workforce engagement when women serve on their boards of directors. It follows the lead of Germany, France, Spain, Norway, and the Netherlands that have addressed the lack of gender diversity on corporate boards by instituting quotas requiring 30 to 40 percent of seats be held by female directors.

Gov. Brown noted in his signing letter that corporations have been considered “persons” for more than a century, so they should reflect the “persons” who make up America as a result.  The California Chamber of Commerce and a coalition of other businesses opposed the bill and argued that the mandate is unconstitutional and a violation of California’s civil rights statutes. While Gov. Brown acknowledged that the law could face legal challenges, he noted that “recent events . . . make it crystal clear that many are not getting the message.” Therefore, he felt signing the bill into law was a necessary measure.  No lawsuits have yet been filed.

In the meantime, California-based publicly held companies should act promptly to ensure that their boards of directors include the number of women directors needed to comply with the statute.

Does Title VII Protect Gay & Transgender Employees? The Supreme Court May Soon Decide.

As early as November 30, 2018, the U.S. Supreme Court will decide whether to hear three high profile employment cases that question whether Title VII’s ban on sex discrimination protects gay and transgender employees.  These cases have significant implications on the proper scope of Title VII and the rights of the LGBT community in the workplace.

Under Title VII, an employer has engaged in “‘impermissible consideration of … sex … in employment practices’ when ‘sex … was a motivating factor for any employment practice,’ irrespective of whether the employer was also motivated by ‘other factors’.”

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#MeToo One Year Later – Employers’ Responses to the Movement

On October 15, 2017, the #MeToo movement began in earnest following a tweet by actress Alyssa Milano. To commemorate the one-year anniversary of the #MeToo movement, the Orrick Employment Law and Litigation Blog will analyze the effects of the movement from the employment perspective. Part 1 reviewed the movement’s impact on sexual harassment claims in the workplace, Part 2 focused on the legislative reaction to the movement, and Part 3 below discusses how employers have responded to #MeToo.

Over the past year, the #MeToo movement has caused a seismic shift in our culture that continues to ripple through important aspects of our daily lives, especially the workplace. As we previously discussed, the #MeToo movement’s growing momentum has sparked rising trends in sexual harassment claims and lawsuits, as well as a significant increase in EEOC charges and enforcement efforts. In the past year, the EEOC revealed that it filed 41 lawsuits with sexual harassment allegations, which is a 50 percent increase from 2017. In addition, litigation and administrative enforcement of sexual harassment issues yielded nearly $70 million to the EEOC in 2018, up from $47.5 million the prior year. But newly filed lawsuits or administrative charges only reveal a part of the impact – claims of sexual harassment may have a devastating effect on those accused of wrongdoing and their employers, even if they lie far beyond any applicable statute of limitations, as today’s claims often do. Employers of all shapes and sizes are acclimating their policies and practices for the #MeToo era, as none can avoid the categorical shift in workplace culture that is slowly becoming the “new normal.” READ MORE

#MeToo One Year Later: The Legislative Reaction

On October 15, 2017, the #MeToo movement began in earnest following a tweet by actress Alyssa Milano. To commemorate the one-year anniversary of the #MeToo movement, the Orrick Employment Law and Litigation Blog will analyze the effects of the movement from the employment perspective. Part 1 reviewed the movement’s impact on sexual harassment claims in the workplace, Part 2 below focuses on the legislative reaction to the movement, and Part 3 discusses how employers have responded to #MeToo. READ MORE

#MeToo One Year Later: A Viral Hashtag with Lasting Effects

On October 15, 2017, the #MeToo movement began in earnest following a tweet by actress Alyssa Milano.  To commemorate the one-year anniversary of the #MeToo movement, the Orrick Employment Law and Litigation Blog will analyze the effects of the movement from the employment perspective.  Part 1 below looks at the movement’s impact on sexual harassment claims in the workplace, Part 2 focuses on the legislative reaction to the movement, and Part 3 discusses how employers have responded to #MeToo.

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OFCCP Director’s Departure Should Not Change Agency’s Priorities

OFCCP recently lost Trump-appointed Director Ondray Harris due to his resignation. Deputy Director Craig Leen takes Harris’s place in the interim. Harris’s departure raises some important questions that covered federal contractors may be asking.

What was Harris able to accomplish during his short tenure?  During Harris’s time at the Agency, there were few policy developments. The Agency extended the moratorium on audits for many health care providers who offer medical coverage under the military’s TRICARE program. In addition, the Agency made good on its promise to provide contractors with additional transparency by (1) publishing its scheduling methodology; and (2) releasing a guidance document titled “What Contractors Can Expect” that stresses good behavior by the Agency and its staff. READ MORE

Wait a Minute…California Supreme Court Says Employers Must Pay for De Minimis Off-the-Clock Work

On July 26, 2018, the California Supreme Court found that employers must compensate workers for the time they spend on certain menial tasks after clocking out of their shifts. In a unanimous decision, the Court held that California wage law did not bar a putative class action brought by a former Starbucks employee who routinely spent several minutes on trivial close-out tasks after his shift. READ MORE

Here We Go Again: Browning-Ferris Revisited

As a result of recent activity at the D.C. Circuit and the National Labor Relations Board (the “NLRB”), the joint employer standard is in a state of flux. On April 6, 2018, the D.C. Circuit decided that it will review the NLRB’s ruling in Browning-Ferris Industries of California, Inc. (“Browning-Ferris”), a controversial decision concluding that a company and its contractor could be found to be joint employers even if the company did not exert overt control over workers’ terms and conditions of employment. In December 2017, the D.C. Circuit remanded the case in light of the NLRB’s decision in Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co. (“Hy-Brand”), which overruled the broad Browning-Ferris standard for joint employment and returned to a more employer-friendly standard. But, the NLRB recently vacated its Hy-Brand decision based on a conflict regarding one of its Members. Now, the D.C. Circuit likely will weigh in on the appropriate scope of the joint employer standard. READ MORE

Are Interns Actually Employees? DOL Adopts New Guidance for Assessing Whether Interns Qualify as Employees

As part of its revision of Obama-era policies, the U.S. Department of Labor (“DOL”) recently announced a new test for assessing whether interns qualify as employees under the Federal Labor Standards Act (“FLSA”). The agency’s adoption of a “primary beneficiary” test aligns the DOL with several circuit court decisions and provides greater flexibility in analyzing intern-employer relationships under federal law. READ MORE

Reversed! NLRB Overrules Browning-Ferris Decision And Returns To Prior Joint Employment Standard

On December 14, 2017, the new Republican majority at the National Labor Relations Board (the “Board”) overturned a controversial Obama-era decision regarding joint employment.  The Board’s 3-2 decision in Hy-Brand Contractors, Ltd. and Brandt Construction Co. (“Hy-Brand”) rejected the 2015 Browning-Ferris decision, which had fundamentally broadened the joint employer standard.  READ MORE