As Congress considers a bill to change the definition of joint employment under two federal statutes, the Supreme Court is poised to decide whether to take up the issue under the Fair Labor Standards Act, the U.S. Department of Labor has withdrawn administrative guidance issued by the prior administration, and several states have enacted or considered joint employment legislation. In this rapidly evolving legal landscape, companies may want to keep a close eye on a doctrine that can lead to unexpected legal exposure. 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
In a case highlighting the European Continent’s approach to worker privacy, the Grand Chamber of the European Court of Human Rights ruled that employers may violate employees’ rights when monitoring their electronic correspondence in the workplace. In Barbulescu v. Romania, the Grand Chamber reversed a prior decision from a smaller panel of the European Court of Human Rights (“ECtHR”) which had determined companies have far-reaching authority to monitor employees’ electronic communications—a similar standard to that which exists in the United States. READ MORE
As those interested in website accessibility regulations under Title III of the Americans with Disabilities Act (“ADA”) know, the Department of Justice announced in May 2016 that it would issue a rule governing website accessibility standards for places of public accommodation to take effect in 2018. It now appears that we can expect an even longer indefinite delay. Last month, the Trump Administration launched its Unified Regulatory Agenda, which “provides an updated report on the actions administrative agencies plan to issue in the near and long term.” The Agenda is meant to effectuate Executive Orders 13771 and 13777, which require agencies to reduce unnecessary regulatory burden. According to the Office of Information and Regulatory Affairs, the Agenda “represents the beginning of fundamental regulatory reform and a reorientation toward reducing unnecessary regulatory burden on the American people. By amending and eliminating regulations that are ineffective, duplicative, and obsolete, the Administration can promote economic growth and innovation and protect individual liberty.” READ MORE
The SEC has awarded $2.5 million to a government agency employee who reported misconduct by a company to the SEC and caused the SEC to open an investigation. While the SEC order granting the award acknowledged that government employees may be prohibited from receiving whistleblower awards in some circumstances, such as when the employee works for a “law enforcement organization,” the SEC nevertheless determined that although “certain components of Claimant’s governmental employer have law enforcement responsibilities, [ ] those responsibilities are housed in a separate, different component of the agency at which Claimant works.” The SEC further explained that “the record is clear that this is not a situation where a claimant sought to circumvent the potential responsibilities that his or her government agency might have to investigate or otherwise take action for the misconduct. We express no view on how an award determination might differ under that alternative circumstance.” Ultimately, because the individual provided the Commission with “credible information . . . significant ongoing assistance, and relevant testimony that accelerated the pace of the investigation,” the SEC found the $2.5 million bounty justified.
In a press release announcing the award, the SEC noted it has now awarded approximately $156 million to 45 whistleblowers since the program’s inception.
In the past few years, the American workforce has shifted dramatically. By some estimates, as many as 53 million Americans are now self-employed. Many of them work in the “gig” or “on demand” economy, which has emerged as the new norm for doing business. In general, the gig economy offers traditional services, such as transportation, food delivery, and housing, in a more efficient way by connecting consumers directly to service providers. But, as with many innovations, gig economy companies face challenges from multiple fronts due to mounting legal pressures. Employment laws written in the 1930s haven’t kept up with the pace of innovation, and trying to apply them to the way services are delivered today is like trying to fit a square peg into a round hole. READ MORE
On June 28, 2017, three prominent whistleblower law regulators spoke at PLI’s Corporate Whistleblowing in 2017, which was co-chaired by Orrick partners Mike Delikat and Renee Phillips. With the standard disclaimer that their comments and opinions were their own and not the official comments of their respective agencies, each spoke candidly about their agencies’ whistleblower program’s progress, challenges, and priorities.
SEC’s Office of the Whistleblower
The Chief of the SEC’s Office of the Whistleblower (“OWB”), Jane Norberg, kicked off the panel with her views on the current status and priorities of the OWB in the new administration: “From my point of view, the SEC’s whistleblower program is open for business and we are moving forward as we have in the past.” She elaborated on the program’s results to date, noting that the Commission has received over 18,000 tips and awarded over $154 million to 44 tipsters, reflecting over $1 billion recovered through the SEC’s enforcement actions and related actions arising from whistleblower tips. Norberg explained, “the real value of the program comes from individuals who help prevent ongoing fraud at a company while also giving victims a chance to recover some of what they lost.” READ MORE
When Donald Trump was elected President of the United States in November, he vowed to “dismantle” the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”). In its place, Trump promised to replace the law “with new policies to encourage economic growth and job creation.” Now a bill known as the Financial CHOICE Act may initiate the process to do just that. But at least with respect to Dodd-Frank’s whistleblower provisions, the Financial CHOICE Act would leave largely intact the current bounty programs that have already awarded tipsters over $150 million in the U.S. and abroad.
On Tuesday, a federal district court in Florida issued an order in the first known trial involving accessibility to a public accommodation’s website. Ultimately, the court found that grocery giant Winn-Dixie violated Title III of the Americans with Disabilities Act (“ADA”) because its website was inaccessible to a visually impaired customer. As we have written about previously here and here, currently there are no binding regulations that specify the accessibility standards for websites under Title III of the ADA.
Effective June 7, 2017, the Department of Labor (“DOL”) has withdrawn informal guidance on independent contractors and joint employment. The guidance on independent contractors came from an Administrator’s Interpretation released in 2015 and was the result of the DOL’s renewed focus on worker misclassification. In it, the DOL seized upon a broad definition of “employ” under the Fair Labor Standards Act (“FLSA”)—“to suffer or permit to work”—to conclude that “most workers are employees under the FLSA.” The DOL’s guidance on joint employment was released in 2016 and also came from an Administrator’s Interpretation. The guidance provided a broad interpretation of joint employment in the wake of the NLRB’s Browning-Ferris decision. It also distinguished between “horizontal” joint employment, which occurs when the employee has an employment relationship with two or more sufficiently related employers, and “vertical” joint employment, which occurs when the employee has an employment relationship with one employer (such a staffing agency or subcontractor), but economic realities show that he or she is economically dependent upon another entity. READ MORE
The Commodity Futures Trading Commission (CFTC), published updated regulations Monday to bring its whistleblower bounty efforts more in line with the SEC’s. The rules were proposed last August and generally provide more robust protections to would-be whistleblowers. According to an agency press release, “In addition to strengthening anti-retaliation protections, the new amendments will add efficiency and transparency to the process of deciding whistleblower award claims and will, in many respects, harmonize the CFTC’s rules with those of the U.S. Securities and Exchange Commission’s whistleblower program.” READ MORE