Jill Rosenberg

Partner

New York


Read full biography at www.orrick.com
Jill Rosenberg, a New York employment law partner, is a nationally recognized employment litigator and counselor. Jill has significant experience defending and advising employers in discrimination, sexual harassment, whistleblowing, wrongful discharge, affirmative action, wage-and-hour and traditional labor matters.

She handles complex individual cases, as well as class actions and systemic government investigations. She represents a broad range of companies, including employers in the securities industry, banks and financial institutions, accounting firms, law firms, and employers in the food service and publishing industries. Jill also has particular expertise in the representation of nonprofit entities, including colleges, universities, hospitals, foundations and cultural institutions.

She designs and conducts training programs for clients and frequently speaks on employment law issues for employer and bar association groups such as National Employment Law Institute, Practising Law Institute, National Association of College and University Attorneys and the New York State Bar Association.

Jill’s notable engagements include:

  • Employment Arbitrations for Securities Industry Employers. Jill has tried to decision more than 30 employment arbitrations before FINRA (formerly NASD and NYSE), JAMS and AAA involving claims for bonuses and other forms of compensation, wrongful termination, sexual harassment, discrimination and whistleblowing/retaliation. She has also litigated important issues in the field of arbitration, including the permissibility of mandatory arbitration, the scope of judicial review of arbitration awards and the availability of certain remedies.
  • Higher Education Litigation. Jill was lead trial counsel representing a university in a federal court jury trial involving allegations of gender discrimination arising out of a denial of tenure. This two-week trial resulted in a defense verdict for our client, which was upheld on appeal by the Second Circuit. Jill also counsels and litigates on behalf of higher education clients with regard to Title IX athletics compliance, student discipline, sexual harassment, disabilities issues and other issues unique to higher education settings.
  • Whistleblower Defense. Jill frequently defends employers against Sarbanes-Oxley and other whistleblower and retaliation claims. She is also retained by employers to conduct internal investigations and advise on whistleblowing and retaliation issues.

Posts by: Jill L. Rosenberg

California Takes One Step Closer to Imposing Reporting Requirements and Public Shaming for Employer Pay Gaps

When we last checked in on AB 1209, the Gender Pay Gap Transparency Act, the proposed legislation was making its way through the California Senate. After making a few key amendments, the Senate passed the bill on September 7, 2017. The California Assembly approved the amendments on September 11, 2017, and now the fate of AB 1209 lies in the hands Governor Jerry Brown. READ MORE

Attention NYC Retail Employers! On-Call Scheduling to End

Effective November 26, 2017, retail employees in New York City will be entitled to advance notice of their scheduled shifts, and the practice of “on-call shifts”–where an employee is required to be available to work but not necessarily called to work–will be prohibited.  These provisions are part of new “Fair Workweek” legislation aimed at providing “predictable schedules and predictable paychecks” for retail and fast food workers in New York City.

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Oh F**k: Employee’s Profane Facebook Post is Protected Activity

On April 21, 2017, the Second Circuit Court of Appeals upheld a National Labor Relations Board (NLRB or Board) ruling that an employer violated the National Labor Relations Act (NLRA or Act) when it discharged a catering employee for posting a vulgar comment on social media directed at his supervisor. In NLRB v. Pier Sixty, LLC (2d Cir. 2017), the court determined that the employee’s post, under the particular circumstances of the case, was not so “opprobrious” as to lose protection under the NLRA. READ MORE

Flagged Down: Second Circuit Finds NYC “Black Car” Drivers Are Independent Contractors

The Second Circuit has affirmed the dismissal of a class action of New York City “black car” drivers who alleged they were misclassified as independent contractors by their dispatchers. In reaching its ruling, the Court found that multiple factors of the economic realities test weighed against employee status for the drivers.

Black car drivers provide rides to high-end clientele, such as business executives, celebrities, and dignitaries. In 2012, a class of drivers sued Corporate Transportation Group Ltd. and a number of its affiliates (collectively, the “dispatchers”) alleging they were misclassified as independent contractors in violation of the FLSA and New York Labor Law.  After originally granting conditional class certification, the U.S. District Court for the Southern District of New York granted the dispatchers’ motion for summary judgment, concluding the drivers were properly classified as independent contractors under both statutes. READ MORE

Salary History Becomes a Thing of the Past in New York City

On April 5, 2017, the New York City Council passed an amendment to the New York City Human Rights Law prohibiting employers or their agents from inquiring about the salary history of an applicant.  The law also restricts an employer’s ability to rely upon that salary history in determining the salary, benefits or other compensation during the hiring process “including the negotiation of a contract.” The term “salary history” is defined to include current or prior wages, benefits or other compensation, but does not include “objective measures of the applicant’s productivity such as revenue, sales or other production reports.”

There are several notable exceptions to the law.  READ MORE

The “New York Promise Agenda” Promises to Increase Employee Protections

On January 9, 2017, New York State Governor Andrew M. Cuomo proposed a package of reforms to promote his vision of social justice within the state. The wide ranging set of proposals included two Executive Orders focused on eliminating the gender and race wage gap, which is one of the core stated goals of the New York Promise Agenda. READ MORE

New York State Rings in the New Year by Adopting Increased Salary Basis Thresholds

Just before their December 31, 2016 planned effective date, the regulations proposed by the New York State Department of Labor in October 2016 were formally adopted on December 28, 2016. Pursuant to the regulations, New York City employees need to be paid a minimum of $42,900 annually to be considered exempt from overtime under the administrative and executive exemptions.  Lower salary thresholds have been established for small New York City employers (10 or fewer employees) and for employers outside of New York City.  An employee who earns less than the salary thresholds on and after December 31, 2016 will become non-exempt and overtime eligible unless their salaries are increased above the new salary threshold.  New York State employers should also be mindful that the salary thresholds will increase annually through 2020.  A complete schedule of the new salary thresholds by employer location and size can be found here.

For employers who might have suspended or reversed decisions to reclassify employees or increase their salaries when the federal overtime regulations were enjoined last month, the New York State Department of Labor did not leave much time to consider the options and address compensation practices.  Although just formally adopted, the regulations are effective on December 31, 2016 as had been contemplated in the proposed regulations. (See New Minimum Wage FAQs).

More Questions for Employers As DOL Appeals Preliminary Injunction of Overtime Rules

On December 1, 2016, the date that the Department of Labor regulations were set to become effective, the government filed a notice of appeal [link to http://dciconsult.com/wp-content/uploads/2016/12/DOL-appeal.pdf] of the November 22, 2016 the United States District Court for the Eastern District of Texas’s Order granting a nationwide preliminary injunction “from implementing and enforcing” the DOL’s new overtime regulations. Those regulations would have raised the minimum salary level for exempt employees from $455 per week ($23,660 annually) to $913 per week ($47,476 annually). The Court’s ruling was based, in part, on its holding that the DOL exceeded its delegated authority by changing the salary basis test at a level that was contrary to Congress’ intent that executive, administrative and professional employees be exempted from coverage of the FLSA. A full copy of the injunction order can be found here. In the wake of the Court’s ruling and now uncertain future regarding the DOL’s new overtime rules, we thought it would be helpful to provide some interim guidance on frequently asked questions we have received since the Court’s ruling.  READ MORE

Statutory Protections for Freelance Workers: New York City Paving the Way for a New Category of Workers?

Wage and hour laws have traditionally drawn, or at least attempted to draw, a bright line between employees, who are entitled to the protections of wage and hour and other employment laws and independent contractors, who are not covered by most employment-related statutes.  In the growing gig economy, however, some have suggested that there should be a third category of worker – one that has some, but not all, legal protections of an employee but whose relationship is freelance, transient and potentially for multiple entities.  In the first-of-its-kind legislation, the New York City Council has passed a bill that provides statutory wage protections for freelance workers.  The law awaits signature from New York City Mayor Bill de Blasio.  If signed, the law would become effective 180 days after it is signed and would apply to contracts signed after the effective date.

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Up, Up and Away: Another Proposed Increase to the Salary Threshold For Exempt Employees In New York

Just weeks before the United Stated Department of Labor (USDOL) regulations are set to increase the salary threshold for exempt employees throughout the country, the New York State Department of Labor is proposing an even higher threshold that will surpass the federal requirements for some New York employers as of December 31, 2017. On October 19, 2016, in addition to updating its regulations to match the minimum wage increases announced this past spring, the New York State Department of Labor proposed new changes to the salary basis minimums for exempt employees in New York.

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