In yet another development in the closely watched case of Rizo v. Yovino, the en banc Ninth Circuit ruled that employers may not defeat a plaintiff’s prima facie case under the Equal Pay Act (EPA) by arguing prior pay is a “factor other than sex” within the meaning of the statute. By doing so, the Ninth Circuit reaches the same result as the previous opinion penned by the late Judge Stephen Reinhardt before his passing in 2018, including overruling Kouba v. Allstate, a prior Ninth Circuit opinion that held that prior pay could justify pay differentials in combination with other factors, and if relied upon reasonably and to effectuate a business policy. The majority opinion further holds that as a matter of statutory interpretation, a “factor other than sex” within the meaning of the EPA must be “job related,” yet it also makes clear that the EPA does not prohibit employers from considering prior pay in making starting pay offers (and in this regard differentiates the opinion from California’s salary history ban). Two separate concurring opinions agree with the result, but they criticize the majority opinion for giving too narrow a reading of the EPA’s fourth “catch all” defense and for embracing a view of prior pay that puts the Ninth Circuit at odds with other circuits and guidance from the U.S. Equal Employment Opportunity Commission (EEOC). READ MORE
Mike litigates "bet the farm"-style class and collective actions and provides cost-effective solutions to clients with the company's overall business model in mind.
Lawsuits can undermine business strategy. Mike understands this and approaches legal solutions with a sensitivity towards how litigation may impact the client's overall business goals. He applies a creative approach in advising clients in several industries, including tech, finance, and retail.
Currently, Mike is defending a tech giant in a major class action alleging disparate impact based on gender. His involvement includes addressing novel privilege issues, strategizing eDiscovery solutions, and positioning the client for opposition to class certification. Besides litigation experience, Mike also counsels clients regarding OFCCP investigations, wage and hour compliance, and cross border human resources issues. He is also a member of the firm's Whistleblower Task Force and Blockchain Working Group. In 2017, Mike was awarded Orrick's Community Responsibility Award for his involvement with several local service projects.
Mike graduated with honors from The Ohio State University College of Law, where he was also awarded the Public Service Fellow distinction, received several CALI Excellence for the Future Awards, and competed as a member of Ohio State's National Moot Court Team. He received his undergraduate degree from Westminster College, magna cum laude, where he now serves on the College's Alumni Council.
Posts by: Michael Disotell
While world governments scramble to contain the spread of the coronavirus, businesses are fielding questions from employees who are concerned for their safety and protection in the workplace. As you develop your coronavirus response strategy, be mindful of employee privacy, anti-discrimination, and other employment law considerations. Ultimately, any actions employers take should be proportionate to the risks presented. Here are a few of the most common questions employers should ask and some practical tips. READ MORE
With the new year comes the likelihood that the U.S. Supreme Court, the California Supreme Court, and the Ninth Circuit will issue a number of significant decisions spanning a range of topics in the employment arena. In addition to the new California laws that have recently come into effect, covered here, California employers should watch these three litigation areas as well: READ MORE
On December 19, 2019, the U.S. Commodity Futures Trading Commission (CFTC) announced that it will award more than $1 million to an individual whose tip helped expose a securities fraud scheme and eventually led to the CFTC filing charges. The individual first provided the information through the employer’s internal compliance program, which the employer submitted to another regulator, and the individual subsequently provided that information directly to the CFTC. The award is significant because it recognizes that individuals are eligible to receive an award for: (1) being the original source of information the CFTC receives from another regulator; and (2) a tip that leads to evidence of a violation the CFTC ultimately charges, even if the reported conduct itself does not form the basis for those charges. READ MORE
The SEC’s Office of the Whistleblower (“OWB”) released its Fiscal Year 2019 Annual Report (the “Report”) to Congress on the Dodd-Frank Whistleblower Program on November 15, 2019. The Report analyzes the tips received over the last twelve months by the OWB, provides additional information about the whistleblower awards to date, and discusses the OWB’s efforts to combat retaliation and other actions that muzzle whistleblowers. To date, the SEC has recovered over $2 billion in total monetary sanctions from its enforcement actions arising from whistleblower tips, including more than $1 billion in disgorgement of ill-gotten gains and interests, and it has or is scheduled to return almost $500 million to harmed investors. READ MORE
California Governor Gavin Newsom recently signed into law SB 142, significantly expanding employers’ obligations to provide break time and lactation room accommodations for working mothers. Following in the footsteps of San Francisco’s Lactation in the Workplace Ordinance, SB 142 imposes a host of new requirements regarding lactation accommodation spaces, policies, and break time: READ MORE
The U.S. Securities Exchange Commission (“SEC”) and Commodity Futures Trading Commission (“CFTC”) administer whistleblower claims under the Sarbanes-Oxley Act of 2002. While the SEC has jurisdiction to regulate U.S. securities markets, the CFTC regulates the U.S. derivatives markets, which includes futures, swaps, and certain types of option contracts. In October, the CFTC’s Whistleblower Office (“WBO”) released its 2019 Annual Report (the “Report”) to two congressional subcommittees to provide insights into its whistleblower program and customer education initiatives. The Report provides an overview of the tips received by the WBO from October 1, 2018-September 30, 2019 (the “reporting period”), highlights several of the whistleblower awards from the past year, and discusses the WBO’s efforts to educate stakeholders about its whistleblower program. READ MORE
On September 24, 2019, the U.S. Department of Labor (DOL) announced its final rule updating the earnings thresholds necessary to exempt executive, administrative, and professional employees from the Fair Labor Standards Act’s (FLSA) minimum wage and overtime pay requirements. According to the DOL’s press release, “[t]he increases to the salary thresholds are long overdue in light of wage and salary growth since 2004,” and the DOL estimates that 1.3 million additional workers will be entitled to minimum wage and overtime pay as a result of the new regulations. READ MORE
On May 6th, the Commodity Futures Trading Commission (“CFTC”) announced that it made a whistleblower award of approximately $1.5 million to an individual whistleblower. The individual provided information that assisted in the successful prosecution of a CFTC action and a related action brought by another federal regulator. In particular, the CFTC recognized that the whistleblower initially sought to report his or her concerns internally prior to reporting to the CFTC, and it enhanced the individual’s award as an incentive.
In making the announcement, the Director of CFTC’s Whistleblower Office Christopher Ehrman explained, “While there is no requirement that a whistleblower report internally before approaching the Commission, today’s award demonstrates that the Commission may pay enhanced awards to those that do – that is one of the positive factors set out in our rules for the Commission to consider in making its award determination.” Furthermore, the CFTC recognized that the information the claimant provided “was directly incorporated into strategy involving witness interviews, and his/her early assistance saved Commission resources through his/her explanation of a complex scheme.”
Since the beginning of the CFTC’s whistleblower program in 2014, the agency has awarded more than $85 million to whistleblowers.
In February, the Internal Revenue Service (IRS) released its FY 2018 Annual Report and announced a record-breaking year for the agency’s whistleblower program. Overall, whistleblowers provided information that contributed to the agency’s recovery of over $1.44 billion during the course of the year. As a result, the IRS awarded $312 million in bounty awards to whistleblowers in FY2018, an almost ten-fold increase from the $33.9 million in awards it made in FY2017. Of the 217 total awards the agency made to whistleblowers in FY 2018, 31 were mandatory awards under Internal Revenue Code section 7623(b) and 186 were discretionary awards under section 7623(a) (which applies to smaller cases). The average award percentage from the total amount collected was 21.7% – up from 16.6% in FY 2016 and 17.8% in FY 2017. READ MORE