Jill Rosenberg

Partner

New York

jrosenberg@orrick.com

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. In recognition of Jill's practice, Chambers USA and Chambers Global awarded her a Band 1 ranking, with clients calling Jill "a terrific lawyer," noting her "stellar reputation for her representation of clients in employment litigation and internal investigations," and her "smart, responsive and practical approach to advice and litigation."

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 technology and media industries. Jill also has particular proficiency 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.

Posts by: Jill L. Rosenberg

ENDA Prevails in the Senate, but Will it End in the House?

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On November 7, 2013, the U.S. Senate passed the Employment Non-Discrimination Act (“ENDA”), legislation that would prohibit workplace discrimination based on sexual orientation or gender identity. The ban would join similar federal workplace protections based on race, national origin, religion, gender, age, and disability. The issue now moves to the U.S. House of Representatives for consideration, where many experts believe the legislation faces an uphill battle. READ MORE →

A Welcome ‘Waive’ of Second Circuit Cases: Class Action Waivers Deemed Enforceable

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Coins and Hourglass

For the better part of the last decade, the Second Circuit routinely and consistently struck down class action waivers in arbitration provisions. As recently as March 2011, the Second Circuit appeared to have brought down the hammer even further, by stating in In Re: American Express Merchants’ Litigation (“AmEx”) that a mandatory arbitration provision—even one that includes an express “class action waiver”—is unenforceable to the extent it “effectively precludes any action seeking to vindicate [plaintiff’s] statutory rights.”  READ MORE →

The Buck Stops Here!: Gristedes Foods CEO May Be Personally Liable for FLSA Claims

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Stack of Money

Last week, in Irizarry v. Catsimatidis, Docket No. 11-4035-cv (July 9, 2013), the Second Circuit held that Gristedes Foods CEO—and current NYC mayoral candidate—John Catsimatidis faces personal liability for settlement payments of FLSA claims against his company. The Court determined that Catsimatidis’ active participation in the operation of the company qualified him as an “employer” under the FLSA and could therefore lead to personal liability. READ MORE →

U.S. Supreme Court Adopts a Narrow Definition of a Supervisor in Harassment Claims

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Resolving a split among the circuits, the U.S. Supreme Court held that a “supervisor” for Title VII harassment liability is limited to those who have the power to take a tangible employment action against the alleged victim (e.g., hire, fire, demote, promote, transfer, or discipline). Merely overseeing and directing the alleged victim’s daily work is insufficient to meet this heightened standard.   READ MORE →

Fifth Circuit to Consider In Re D.R. Horton in Light of Recent Court of Appeals Decision Striking Down Recess Appointments to NLRB

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Coins and Hourglass

A recent D.C. Circuit Court of Appeals decision striking down several recess appointments to the National Labor Relations Board has cast doubt over one of the NLRB’s most controversial decisions from 2012.

In Noel Canning v. NLRB, F. 3d (D.C. Cir. Jan. 25, 2013), the D.C. Circuit held that President Obama lacked constitutional authority to use recess appointments to name three new members to the NLRB because the vacancies did not arise, and the appointments were not made, during a “Recess of the Senate,” which is defined as “the period between sessions that would end with the ensuing session of the Senate.” Slip op. at 18; 39-40. As a result, the court held that the NLRB lacked a quorum when it decided the underlying case, rendering its decision void ab initio.

The holding in Noel Canning raises questions about the viability of In re D.R. Horton, Inc., 357 NLRB 184 – 2012, one of the most widely discussed NLRB decisions of 2012. In D.R. Horton, the Board held that arbitration clauses that prohibit employees from pursuing class or collective actions violate employee rights under Section 7 of the National Labor Relations Act (“NLRA”) to engage in protected concerted activity. D.R. Horton’s appeal will be heard by the Fifth Circuit on February 4.

D.R. Horton was decided the day before President Obama made the recess appointments at issue in Noel Canning. However, Craig Becker, one of the three NLRB members who decided D.R. Horton, was the subject of an earlier recess appointment in 2010. D.R. Horton filed a letter with the Fifth Circuit on January 29, 2013, arguing that the holding in Noel Canning should be applied to Becker’s appointment and render the decision void. The Fifth Circuit is expected to address this issue together with D.R. Horton’s existing arguments during oral argument on February 4.

Duty to Disclose for Employers Claiming “Competitive Disadvantage” in Labor Negotiations

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People at a Table

In a divided opinion published on December 4th, the U.S. Court of Appeals for the D.C. Circuit provided a reminder that employers should always be prepared to substantiate representations made during labor negotiations and clarified the scope of disclosure obligations for employers relying on competitive pressures as a basis for seeking concessions. In KLB Industries, Inc. v. National Labor Relations Board, No. 11-1280 (D.C. Cir. 2012), the employer justified proposed wage concessions by citing, among other things, heightened competition from foreign manufacturers. Union representatives requested an array of information to test the employer’s claim, but the employer largely refused.

The Court of Appeals agreed with the National Labor Relations Board that the employer’s refusal constituted an unfair labor practice under the National Labor Relations Act, which requires employers to furnish relevant information that unions need to perform their role as bargaining representatives. The court found that once an employer makes specific claims of “competitive disadvantage” in labor negotiations, bargaining representatives are entitled to request specific information tailored to verify those claims.  In so doing, the court rejected the suggestion—made by the employer and endorsed by the dissent—that “competitive disadvantage” claims are exempt from these liberal disclosure obligations.

Have questions? With Orrick’s expertise in traditional labor law, we can help you in navigating union-management relationships and in responding to unfair labor practice charges.

Governor Cuomo Signs Amendment to New York Wage Deduction Law

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On September 7, 2012, Governor Cuomo signed a law that will relax some of the stringent prohibitions against wage deductions under New York Law.  Beginning on November 6, 2012, the law will now permit employers, with voluntary employee consent, to take wage deductions for certain employee benefits such as health club membership dues and cafeteria purchases. (See Amendment to New York’s Labor Law Expands the Universe of Permissible Wage Deductions)  Significantly, Section 193 of the New York Labor Law will now allow employers to take wage deductions to recoup overpayments of wages due to mathematical or clerical errors.  However, the New York Department of Labor is expected to issue regulations on how these overpayments will be allowed to be deducted.  The amendment also imposes heightened requirements on the type of notice and authorizations that employers must obtain from their employees before taking any of the newly authorized deductions, and employers will be expected to keep those authorizations for their employees’ entire career and for six years after the end of employment.  Even with these hurdles, employers will welcome this reprieve from New York’s restrictive wage deduction laws.  Click here to read the full alert.

Recent NLRB Decisions Challenge At-Will Disclaimers and May Impact HR Investigations

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Chairs Around a Table

Earlier this year, in D.R. Horton, Inc., 357 NLRB No. 184 (Jan. 6, 2012), the National Labor Relations Board (“Board” or “NLRB”)  held that mandatory arbitration agreements requiring all employment disputes to be resolved through individual, bilateral arbitration violate the National Labor Relations Act (“NLRA”) because such agreements impermissibly restrict employees’ rights under Section 7 to engage in “concerted action for mutual aid or protection.” Although some courts have already rejected D.R. Horton (see e.g., opinion from S.D.N.Y., opinion from M.D. Fla. and opinion from California State Court) two recent pronouncements call into question additional, commonly used and accepted employment practices after finding they also had a “chilling effect” on employees’ right to engage in protected, concerted activity.  Even though it remains to be seen whether these decisions will survive full Board and/or appellate court review, their rationale applies to union and non-union workplaces, and both decisions are worth reviewing now for the impact they may have on employer practices in these and other areas. READ MORE →