Gary Siniscalco, Senior Counsel and Co-Chair of the EEO & OFCCP
Compliance Group, has significant experience advising clients on complex
employment litigation and advisory matters. He has particular
experience in counseling and litigation defense for clients on equal
opportunity, affirmative action (OFCCP) compliance, wrongful discharge,
wage-and-hour matters and in working with companies on cross-border
Gary has handled numerous class actions, pattern and practice cases and government audits, in court and before the EEOC and Department of Labor. He brings a particularly unique perspective to clients on matters involving the EEOC, having served as regional counsel and senior trial attorney for the U.S. Equal Employment Opportunity Commission in San Francisco prior to joining Orrick.
Gary also has an extensive class actions practice, focusing on litigation, consent decree strategies and preventive advice. He has been designated as an expert or retained as special counsel in several federal court class actions throughout the United States.
Gary’s counseling practice extends beyond the United States and includes assisting U.S. multinational companies in dealing with complex employee issues in foreign jurisdictions
Gary has written numerous articles on employment law. Most recently, he is Management Editor-in-Chief of a two-volume treatise--Restrictive Covenants and Trade Secrets in Employment Law: An International Survey (BNA, 2010). Gary is co-author of "The Pay Gap, the Class Ceiling, and Pay Bias: Moving Forward Fifty Years After the Equal Pay Act", ABA Journal of Labor & Employment Law, Vol 29, November 3 (Spring 2014), and "The Law of Employment Discrimination from 1985-2010," ABA Journal of Labor & Employment Law, Vol. 25, No. 3 (Spring 2010).
Gary is widely recognized as one the top management employment lawyers in the United States by every major ranking organization, including Chambers USA, the National Law Journal, Best of the Best USA (Euromoney), and Who’s Who Legal. Among management employment lawyers in the United States and Europe, Gary is ranked in the top 10 of Who’s Who international management labor and employment lawyers and is described as “absolutely superb.”
Gary also serves regularly on the NYU faculty for training federal judges on employment law, the OFCCP Institute, PLI International Employment Law and ABA Labor and Employment Law Section programs.
Some of Gary’s current representations include:
EEOC commissioner’s charge and individual claims of race and national
origin discrimination in use of criminal background checks against a
major financial services company;
- a commissioner’s charge
alleging race discrimination in hiring and promotions; a multi-employee
race promotion and pay case against a major retail store chain; and
- EEOC Equal Pay Act investigations; and OFCCP systemic pay and promotion audits.
On July 24, 2017, the Second Circuit Court of Appeals rejected a federal district court’s approval for a class of roughly 69,000 women claiming that Sterling Jewelers, Inc. (“Sterling”) discriminated against them based on sex. The decision overturned a district court ruling that affirmed an arbitrator’s decision to let the women proceed to trial as a class in an arbitration.
Plaintiffs initially filed a class action lawsuit in March 2008, alleging that Sterling’s practices and policies led to women being deliberately passed over for promotions and paid them less than their male cohorts. The case was sent to arbitration several months later under Sterling’s arbitration clause.
In 2009, an arbitrator ruled that Sterling’s dispute resolution program did not specifically bar class actions and allowed claimants to seek class status. From there, the case took a number of twists and turns, which we reported on more fully at the time here.
In June 2013, the employees moved for class certification. In February 2015, the arbitrator ruled that that the employees could proceed as a class in the arbitration. In November 2015, the district court affirmed the arbitrator’s decision concluding that the arbitrator did not exceed her authority by certifying a class that included absent class members i.e., employees other than the named plaintiffs and those who have opted into the class. Sterling appealed. READ MORE
Recently, in McLane Co., Inc. v. EEOC, case number 15-1248 , the United States Supreme Court clarified the standard for when an appellate court reviews a trial court’s order to enforce or quash a subpoena from the EEOC. Vacating a Ninth Circuit decision applying a de novo standard of review, the Court ruled that appellate courts should review based on the abuse of discretion standard. READ MORE
This past March, we blogged about the U.S. Supreme Court’s decision in Bouaphakeo v. Tyson Foods, Inc., 136 S. Ct. 1036 (2016), a case in which the plaintiffs alleged that Tyson Foods improperly denied compensation for time spent putting on and taking off required protective gear at a pork processing facility. At trial, the plaintiffs presented experts who, based on sample data, determined the average number of minutes employees likely spent donning and doffing and the aggregate damages that would be owed to the class as a result.
Earlier this year, we predicted that the Department of Labor’s Office of Federal Contract Compliance (“OFCCP”) would ramp up investigations directed at rooting out alleged discrimination by information technology companies. Many tech companies have indeed been the focus of increasingly intense and acrimonious investigations in 2016.
OFCCP took its enforcement efforts to the next level this week by filing a formal administrative complaint for violations of Executive Order 11246 (which prohibits discrimination by federal contractors). The complaint alleges that Palantir Technologies – a private software company headquartered in Palo Alto and recently valued at $20 billion – discriminated against Asian applicants for three positions (QA Engineer, Software Engineer, and QA Engineer Intern). Specifically, the OFCCP alleges that the company hired largely based on an employee referral system that resulted in statistically significant underrepresentation of Asian hires, given that the vast majority of applicants for these jobs were Asian. The complaint seeks to debar the company from future federal contracts and require “complete relief” for Asian applicants for these roles, including lost compensation, hiring, and retroactive seniority.
The federal government released the final regulations implementing the Fair Pay and Safe Workplaces Executive Order (“EO” hereafter) this week. The regulatory package contains two parts: amendments to the Federal Acquisition Regulations and guidance from the Department of Labor for implementing the regulations. The regulatory package is a central part of the Administration’s aggressive regulatory agenda we have previously discussed and reflects continuing burdens on federal contractors.
The U.S. Department of Labor (DOL) sent its much anticipated final overtime regulations to the Office of Management and Budget (OMB) for review on March 14, 2016. Technically, this move came slightly ahead of schedule. OMB now has 90 days to review, which would put its “due date” in mid-June – ahead of the July regulatory agenda publication date we previously reported. However, as these overtime regulations are a top-line priority subject to intense political scrutiny, there is reason to believe OMB may not complete its review within the 90-day window.
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.
On March 16, 2016 the EEOC will be holding hearings on its proposal to expand the EEO-1 report to require employers to provide pay data. Orrick’s Gary Siniscalco was asked to address the hearing to provide employer views on this issue. Watch our Blog for ongoing developments on this issue and new developments in the equal pay area as they continue to unfold. The text of Gary’s testimony before the EEOC will be as follows:
As you brace for the New Year, don’t forget that California’s minimum wage will reach $10 per hour on January 1, 2016. This latest increase is the final stage of the two-step legislation that increased the minimum wage from $8 to $9 per hour on July 1, 2014, and now to $10 per hour effective January 1, 2016.
Asia Employment Law Update
Proposed Regulations May Complicate Reductions in Force in China
On December 31st, 2014, Ministry of Human Resources and Social Security (“MOHRSS”) issued a notice to solicit public opinions on the draft Regulations on Personnel Cutbacks by Enterprises (“Draft Regulations”). The Draft Regulations set out detailed implementing rules for “mass layoffs” (defined under the Labor Contract Law as being a layoff of more than 10% of the workforce or more than 20 employees) and, if adopted in their current form, will further complicate the process for conducting reductions in force in China.