Labor and Employment

EXPERIENCE & RECENT REPRESENTATIONS

Secured a significant victory for Global Linguists Solutions LLC (GLS) when the plaintiffs in a putative class action stipulated to the voluntary dismissal of their case with prejudice. Plaintiffs were current and former linguists who worked for GLS on a contract to assist U.S. military forces in Kuwait. GLS successfully first removed the case, originally filed in California state court, to the Central District of California and then transferred it to the Eastern District of Virginia on the basis of the forum-selection clause in plaintiffs’ employment contracts. The dismissal came after further successful pretrial proceedings, including enforcement of a contractual jury trial waiver and dismissal of nine of the 11 asserted claims including for promissory fraud for failure to provide certain meal and other pay and compensation items. This was the second putative class action filed by linguists against GLS in which it was represented by Gibson Dunn. Plaintiffs in the first suit voluntarily dismissed their action without prejudice.
Secured denial of class certification from the Central District of California of state law employment claims filed on behalf of hundreds of store managers working in more than 130 of client Michaels Stores, Inc.’s locations across California. This decision followed a successful two-year battle to secure federal court jurisdiction that culminated in a published Ninth Circuit decision obtained by Gibson Dunn for the client. Prior to the Circuit’s decision, a state court had partially certified a class of Michaels store managers. The Central District of California rejected the state court’s reasoning and reversed it, stating that under Rule 23 the individualized issues in the case would “swamp the common issues of fact and law that this case presents[.]”
Won unanimous reversal from the Fifth Circuit on behalf of UBS Financial Services, Inc. (UBSFS) of the district court’s denial of a motion to compel arbitration of compensation-related claims asserted by former UBSFS financial advisors and branch managers. Plaintiffs had filed a putative class action in federal court rather than submitting their claims for resolution in individual arbitrations pursuant to arbitration and class waiver agreements in their employment agreements. In addition to denying arbitration, the district court certified the case as a nationwide class action. Gibson Dunn appealed the arbitration order, and the Fifth Circuit rejected plaintiffs’ attempts to avoid arbitration as a result of a separate arbitration agreement that did not contain a class waiver.
Won affirmance from the Third Circuit of summary judgment for Enterprise Holdings, Inc., the parent corporation of Enterprise Rent-A-Car, defeating the plaintiffs’ attempt to pursue a nationwide overtime class action under the U.S. Fair Labor Standards Act (FLSA) by alleging that Enterprise was the joint employer of assistant managers employed by its subsidiaries. The proper test for determining joint employer status under the FLSA was an issue of first impression in the Third Circuit and was certified by the district court for an interlocutory appeal. The Court of Appeals created a new test, which it called the Enterprise test.
Defeated a wage and hour class action against Northrop Grumman by convincing the Central District of California to dismiss plaintiff’s class allegations and order plaintiff to pursue his claims on an individual basis in arbitration.
Defeated class certification in a California wage and hour class action in a case against Sunrise Senior Living Management, Inc. The suit alleged that Sunrise had a common practice of failing to provide meal and rest breaks under California Labor Code Sections 226.7 and 512, and that this resulted in a variety of other violations of the California Labor Code. In denying class certification, the Central District of California held that the plaintiff had failed to establish that the requirements of Federal Rule of Civil Procedure 23(b)(1) were met, since there was no evidence of a risk of inconsistent adjudications, and that the requirements of FRCP 23(b)(3) also were not met, because common issues did not predominate as to plaintiff’s claims.
Defeated class certification for Tenet Healthcare in California statewide wage and hour class action filed on behalf of thousands of nonexempt employees, and involving pay stub, meal and rest period, termination pay and other claims. In addition, we won unanimous affirmance from the California Court of Appeal in a published opinion.

Obtained a landmark victory in the U.S. Supreme Court for the world’s largest retailer in arguably the most important employment class action decision ever issued.
Won dismissal for Good Samaritan Hospital in California federal court of a surgeon’s discrimination lawsuit. The complaint alleged that the San Jose, California hospital and its medical staff discriminated against plaintiff on the basis of race and violated his procedural due process rights in disciplinary proceedings related to privileging. Plaintiff also challenged other practices of the hospital related to hiring. In dismissing, the court agreed with Gibson Dunn that plaintiff failed to meet his burden of alleging that the disciplinary proceedings were racially motivated, and that the hospital and medical staff were state actors required to provide due process in adverse employment actions.
Secured dismissal of all claims asserted by the former president of Playmates Toys Inc. against the company in the California Superior Court, Los Angeles County, and before the AAA arising out of his 2012 termination. The claimant sought damages in excess of $5 million for alleged discriminatory conduct and the loss of stock options. Gibson Dunn filed a motion for terminating sanctions and attorneys’ fees based on the claimant’s and his counsel’s dilatory and bad faith failure to prosecute the action and comply with discovery requests. In the face of that motion, the claimant agreed to dismiss his claims with prejudice and in exchange for no monetary consideration.
Persuaded the Third Circuit to reverse certification of the largest class in the history of the Americans with Disabilities Act (ADA). The Third Circuit held that the burden-shifting framework adopted for certain Title VII cases in Teamsters v. United States could not be used to obviate the need to consider the ADA’s statutory elements. The court’s decision also confirmed that inherently individualized claims and those for monetary damages are unsuitable for 23(b)(2) certification. This decision was a seminal one, not only in the context of the ADA, but also in cases where class certification is sought pursuant to Rule 23(b)(2) and in employment cases generally.

Won motion for summary judgment for client Science Applications International Corporation Inc. (SAIC) in a False Claims Act whistleblower case filed by a former employee. Plaintiff was terminated and alleged that SAIC retaliated against him in violation of the whistleblower protection provision of the False Claims Act after he purportedly raised concerns about timecharging irregularities. Gibson Dunn filed a motion for summary judgment, arguing that plaintiff had failed to establish a triable issue of material fact upon which a jury could find that he satisfied the requisite elements of a False Claims Act whistleblower claim. The Eastern District Court of Virginia agreed and granted SAIC’s summary judgment motion from the bench at the conclusion of oral argument.
Represented UPS, the world’s largest package delivery service, in a case in which the Labor Department’s Administrative Review Board affirmed an administrative law judge (ALJ)’s decision in favor of UPS, in a whistleblower retaliation case brought by a former UPS employee under the Toxic Substance Control Act (TSCA) and the Surface Transportation Assistance Act (STAA). The complainant alleged, among other things, that he was terminated in violation of federal whistleblower laws when he refused to obey instructions to leave the scene of a mercury spill on the basis that he had no formal experience or responsibilities for the incident. After several days of trial and post-trial briefing, the ALJ ruled in favor of UPS. The judge explained that the complainant’s claim failed to meet the required elements for engaging in protected activity under the STAA and TSCA, and that in any event, UPS had a legitimate, nondiscriminatory reason for his discharge due to his repeated failure to follow instructions. The Administrative Review Board affirmed the decision, finding that any alleged protected activities played no role in UPS’s decision to terminate the complainant for failure to follow managerial instructions.
Handled an appeal before the Administrative Review Board of an early leading precedent on protected activity under Sarbanes-Oxley.
Provided representation in two of the most widely reported Sarbanes-Oxley matters. In the first, Gibson Dunn represented the audit committee of the board of directors of Coca-Cola. In the second matter, we successfully represented a major retailer before the Department of Labor and in a state court action.
Won a unanimous decision from the Eleventh Circuit for Stone & Webster Construction, Inc., in a whistleblower case involving the Browns Ferry Nuclear Plant. A Stone & Webster foreman claimed he was fired for raising nuclear safety concerns. Represented by Gibson Dunn, Stone & Webster won a several-day trial before an administrative law judge, but the Department of Labor’s Administrative Review Board reversed. On review, the appellate court held that the Board failed to observe the proper standard of review of the decision of the administrative law judge and misapplied Eleventh Circuit precedent. The court remanded the case to the Board for proper application of the law.

Secured a confidential settlement for Nike Inc. resolving its case against three former top Nike footwear designers in the Oregon Circuit Court less than six months after winning a TRO and a preliminary injunction preventing the designers from (1) disclosing misappropriated trade secrets, (2) working for Adidas or any Nike competitor, and (3) publicly associating themselves with Adidas on social media. Nike won a series of important victories over defendants and third party Adidas during discovery, which exposed numerous breaches of contract by the defendants and led to revelations that they had destroyed relevant evidence.
Obtained a confidential settlement, three days into trial in the Delaware Court of Chancery, on behalf of AlixPartners in its suit against two former employees alleged to have breached their employment agreements when they left for McKinsey, a major competitor, and took AlixPartners trade secrets and confidential information. On cross-examination one of the defendants admitted to destroying documents after the case was filed and before he and his co-defendant were to turn over their electronic devices and e-mail accounts for forensic examination as part of the temporary restraining order issued against them.
Secured a key victory in a trade secret misappropriation action on behalf of Dow Corning Corporation and Hemlock Semiconductor Corporation in the Eastern District of Michigan. Plaintiffs alleged that a now-deceased former Dow Corning employee and others misappropriated Dow Corning trade secrets regarding its fluid bed reactor technology for the production of trichlorosilane, and entered into lucrative contracts for sale of the technology. The court entered default judgment against three defendants on multiple grounds: false advertising, false representations and unfair competition under the Lanham Act; trade secret misappropriation under the Michigan Uniform Trade Secrets Act; and unfair competition and tortious interference with contract under Michigan law. The court also entered a permanent injunction preventing them from both selling, marketing or promoting plaintiffs’ technology, and representing in any way that their products or services were associated with the plaintiffs. The court did not rule on plaintiffs’ request for disgorgement in the amount of $15,700,000, plus prejudgment interest and attorneys’ fees pending outcome of the remaining two defendants’ bankruptcy cases.
Won a stay of all proceedings in a proposed class action against client The Clorox Company, finding that the core issues in the California lawsuit were largely duplicative of a single-plaintiff action in Utah and should be stayed in their entirety pending the outcome of that Utah action. The suit concerns the enforceability of anti-raiding clauses in various non-qualified stock option award agreements and performance share award agreements offered to Clorox employees. Gibson Dunn continues to advise Clorox in the pending Utah litigation.
Obtained a public settlement of $20 million and additional restrictions in a lawsuit brought by Gibson Dunn on behalf of Capital One Financial Corporation against two former executives. Capital One alleged that the defendants had violated their noncompete agreement with Capital One by, among other things, acquiring Herald National Bank, a New York bank, despite their agreement not to compete with Capital One in the New York area for five years. The settlement followed a decision to deny defendants’ summary judgment motion, in which the court held that the noncompete agreement they entered into with Capital One was enforceable.

Persuaded the U.S. Supreme Court to unanimously affirm a landmark separation-of-powers decision from the D.C. Circuit that held unconstitutional three 2012 “recess” appointments to the National Labor Relations Board made by President Obama. Gibson Dunn filed an amicus brief at the certiorari and merits stages on behalf of Senate Republican Leader Mitch McConnell and 44 other U.S. Senators, and presented oral argument on their behalf by special leave of the Court.
Obtained a landmark victory in the U.S. Supreme Court for the world’s largest retailer in arguably the most important employment class action decision ever issued.
Obtained unanimous reversal from the California Court of Appeal for ABM Industries Inc. of an approximately $94 million judgment awarded by a California trial court on summary judgment in a wage and hour class action. Gibson Dunn represented ABM on appeal but not at trial. The Court of Appeal rejected the plaintiffs’ theory that the company violated wage and hour laws by requiring some employees to remain “on call” and carry radios during rest breaks. The appellate court agreed with ABM that “on-call” rest breaks are permissible under California law, and rejected as “false” the trial court’s premise that “California law requires employers to relieve their workers of all duty during rest breaks.” The Court of Appeal instead agreed with ABM that “[r]emaining on call does not itself constitute performing work.”
Secured affirmance from the California Court of Appeal of the trial court’s grant of summary judgment in favor of client Ports America. In holding that labor arbitration awards bar subsequent wrongful termination claims that involve the same primary right (here the right not to be discharged for wrongful reasons), the Court of Appeal established new law on res judicata and the primary rights doctrine.
Won affirmance from the Third Circuit of summary judgment for Enterprise Holdings, Inc., the parent corporation of Enterprise Rent-A-Car, defeating the plaintiffs’ attempt to pursue a nationwide overtime class action under the U.S. Fair Labor Standards Act (FLSA) by alleging that Enterprise was the joint employer of assistant managers employed by its subsidiaries. The proper test for determining joint employer status under the FLSA was an issue of first impression in the Third Circuit and was certified by the district court for an interlocutory appeal. The Court of Appeals created a new test, which it called the Enterprise test.
Persuaded a federal district court – and the Seventh Circuit – to reverse a jury’s $3.5 million punitive damage award against Chrysler in a hostile work environment case. The case involved claims that the plaintiff, an autoworker in a Chrysler assembly plant, was subjected to an anonymous campaign of racist threats and harassment in the workplace that lasted three years. The plaintiff sued Chrysler on the theory that it had failed to take reasonable steps to stop the harassment. The case was tried in the Northern District of Illinois, and the jury ruled in the plaintiff’s favor. Gibson Dunn entered the case at the post-trial motion stage and argued that the punitive damage award should be reversed and judgment entered in Chrysler’s favor. The district court agreed, holding that the evidence at trial was insufficient to impose punitive damages, and reduced the $709,000 compensatory damage award to $300,000. In a lengthy published opinion, the Seventh Circuit affirmed in full, explaining that Chrysler had confronted a challenging situation and that its response to the harassment did not warrant a punitive damage award.
Provided successful representation to the NFL Players when the owners of the National Football League imposed a lockout. Following the lockout, the players disbanded the union and filed an antitrust class action. Although they won a preliminary injunction barring the lockout, the owners obtained a stay from the Eighth Circuit. At a hearing on the merits, Gibson Dunn secured a critical ruling, giving the players leverage, when the appellate court backtracked and held that the district court could enjoin the lockout as to rookies and free agents after an evidentiary hearing. Crucially, the court refused to rule that the owners were insulated from trebled antitrust damages. That decision paved the way for a 10-year collective bargaining agreement and an on-time start to the season.

Defended Boeing before the U.S. National Labor Relations Board in a widely publicized matter in which the NLRB charged the company with establishing a nonunion production line in South Carolina to build the 787 Dreamliner passenger jet in retaliation against union workers in Washington for past strikes. The NLRB dropped the case several months later, after the machinists’ union entered into a new four-year contract extension with Boeing and withdrew its unfair labor practices charge against the company.
Representing the Retail Industry Leaders Association and Retail Litigation Center as amici curiae before multiple federal courts of appeal and the National Labor Relations Board in a series of important cases challenging the NLRB’s Specialty Healthcare “micro unit” rule for union representation cases.
Provided successful representation to the NFL Players when the owners of the National Football League imposed a lockout, obtaining a decision from the Eighth Circuit that paved the way for a 10-year collective bargaining agreement and an on-time start to the season.

Obtained dismissal in the Southern District of New York of an ERISA action on behalf of JPMorgan’s independent directors in connection with the company’s $6 billion “London Whale” trading losses. Plaintiff alleged that the directors breached their fiduciary duties under ERISA by continuing to offer participants in the company’s 401(k) plan an opportunity to invest in JPMorgan stock, and by providing them with inaccurate information concerning the prudence of such investments. The court rejected plaintiff’s arguments. Gibson Dunn simultaneously obtained dismissal of two shareholder derivative actions on behalf of the independent directors arising out of the same trading losses. Gibson Dunn worked closely with counsel for JPMorgan in the defense of these lawsuits.
Won summary judgment for ABF Freight System, Inc. in the Eastern District of California on the claim of plaintiff, a former ABF employee, for violation of ERISA Section 5. He alleged that his employment was wrongfully terminated after he exercised a purported right to receive ERISA-governed pension benefits while continuing to work at his previous level of seniority. The court adopted ABF’s argument that because plaintiff’s pension plan did not provide a right to receive pension benefits while continuing to work at the same level of seniority, he did not invoke an ERISA-protected right. The court also agreed with ABF that plaintiff did not suffer an adverse employment action, and that ABF did not act with intent to interfere with plaintiff’s ERISA-protected rights. The court previously had dismissed plaintiff’s four other causes of action asserted under California state law.
Obtained a preliminary injunction from the Northern District of Georgia, blocking a Georgia law on behalf of America’s Health Insurance Plans just one day before the law was slated to go into effect. Gibson Dunn argued that the challenged law – which would require health plans to pay claims in Georgia within 15 days or face substantial penalties – was preempted by ERISA. The court agreed, blocking Georgia state officials from enforcing the new law. The court concluded that the new law was preempted because it would undermine ERISA’s uniform regulation of self-funded health benefits plans, which are used by most large corporations to provide benefits to their employees and dependents.

Labor and Employment

LEADERS

Jason C. Schwartz

Katherine V.A. Smith

Overview

EXPERIENCE & RECENT REPRESENTATIONS

RECENT PUBLICATIONS

Theane Evangelis Named a Los Angeles Leader in Law in Labor & Employment

Fourteen Gibson Dunn Partners Named Top Employment Lawyers

Labor and Employment Lawyer Danielle J. Moss Joins Gibson Dunn’s New York Office

OSHA Issues Vaccination and Testing Emergency Temporary Standard for Larger Employers

Gibson Dunn Promotes 27 Lawyers to Partnership

New York Expands Whistleblower Law

EU Competition Commissioner Signals Tougher Enforcement of No-Poach and Other Labor Market Agreements

EEOC Expands Guidance on Religious Exemptions to Vaccine Mandates Under Title VII

Gibson Dunn Named Labor & Employment Winner for 2021 D.C. Litigation Department of the Year

Molly Senger Named a 2021 D.C. Rising Star

Webcast: COVID-19 Vaccines: Employer Strategies and Considerations in the Era of Government Mandates

Benchmark Litigation US 2022 Gives Top Marks to Gibson Dunn

Seventeen Gibson Dunn Partners Recognized in Expert Guides’ Women in Business Law

Gibson Dunn Adds Labor & Employment Partner Harris Mufson in New York

Joshua Lipshutz and Jason Schwartz Named Among Benchmark Top 20 Labor & Employment Litigators

White House Task Force Announces New COVID Safety Protocols for Federal Contractors

California Court of Appeal Confirms That Trial Courts Have the Authority to Strike PAGA Claims That Are Unmanageable

President Biden Announces COVID-19 Vaccine Mandates, with Legal Challenges Likely to Follow

California Supreme Court Reinforces Strong Presumption Against Liability for Companies Hiring Independent Contractors Based on Injuries to Contract Workers

Colorado’s Department of Labor and Employment Takes Hard Line on Remote Jobs that Exclude Colorado Applicants to Escape Challenging Aspects of the Equal Pay for Equal Work Act’s Posting Requirements

Department of Labor Initiates Rulemaking to Raise the Minimum Wage to $15 per Hour for Federal Contractors

California Supreme Court Announces New Formula for Calculating Premium Payments for Failures to Provide Meal Periods or Rest Breaks

President Signs Executive Order Directing Agencies to Address Wide Range of Businesses’ Competitive Practices, Including Non-Compete Agreements

European Employment Law Update – Return to Work – July 2021

Jesse Cripps Named Among California Top Employment Lawyers for 2021

Third Circuit Court of Appeals Addresses Federal Trade Secret Standards

Employer-Mandated Vaccination Challenge Dismissed

Law360 Names Lauren Blas and David Fotouhi as 2021 Rising Stars

Best Lawyers in the United Kingdom 2022 Recognizes 10 Gibson Dunn Attorneys

EEOC Updates Technical Assistance on COVID-19 Vaccinations

Colorado’s Equal Pay for Equal Work Act Transparency Rules Survive Motion for Preliminary Injunction Challenging Their Constitutionality

New York State Legalizes Recreational Marijuana, Places Limits on Employers’ Ability to Take Drug Use Into Account When Making Employment Decisions

Gibson Dunn Wins Six Awards at 2021 Benchmark Litigation US Awards Ceremony

An Employer Playbook for the COVID “Vaccine Wars”: Strategies and Considerations for Workplace Vaccination Policies

California Supreme Court Issues Important Decision Regarding an Employer’s Obligation to Provide and Record Meal Periods

Scope of Employer Liability for Discriminatory Conduct Under New York City Law Narrowed by Court of Appeals

Big data, ethics and financial services: risks, controls and opportunities

Webcast: COVID-19 Vaccines: Employer Strategies and Considerations

2020 Year-End ERISA Disputes Update

Brian Ascher and Molly Senger Named Among LMG’s 2020 Rising Stars Americas

Five Gibson Dunn Attorneys Named Among Washingtonian Magazine’s 2020 Top Lawyers

UK Employment Update – January 2021

2020 Year-End German Law Update

2020 Year-End California Labor and Employment Update

An Employer Playbook For The Covid “Vaccine Wars”: Strategies And Considerations For Workplace Vaccination Policies[1]

Eleven Gibson Dunn Partners Named Top Employment Lawyers

Webcast: Key labour and employment issues for clients in France, Germany and the UK during the current pandemic?

Gibson Dunn Named a 2020 Firm of the Year

Benchmark Litigation US 2021 Gives Top Marks to Gibson Dunn

Law360 Names Eight Gibson Dunn Partners as 2020 MVPs

Gibson Dunn Ranked in the 2021 UK Legal 500

Executive Order on Combating Race and Sex Stereotyping

New York State’s New Paid Sick Leave Law Takes Effect on September 30, 2020

UK Government Announces Its ‘Winter Economy Plan’

Thirteen Gibson Dunn Partners Recognized in Expert Guides’ Women in Business Law

13 Gibson Dunn Partners Named Lawyers of the Year

Developments in Immigration and Customs Enforcement of Foreign Student Visa Policy Under COVID-19

Catherine Conway and Michele Maryott Named Among California’s Top Employment Lawyers for 2020

Are Your Slack Communications Primed For E-Discovery?

Law360 Names Five Gibson Dunn Lawyers as 2020 Rising Stars

California Supreme Court Answers Critical Questions on Jurisdictional Scope of Certain Labor Laws and Minimum Wage Compliance for Employers Utilizing Non-Hourly Wage Units

Best Lawyers in Germany 2021 Recognizes 19 Gibson Dunn Attorneys

Supreme Court Holds That Title VII’s Prohibition On Discrimination Because Of Sex Includes Sexual Orientation And Transgender Status Discrimination

Best Lawyers in the United Kingdom 2021 Recognizes 12 Gibson Dunn Attorneys

UK government announces important changes to the Coronavirus Job Retention Scheme and Self-Employment Income Support Scheme

Gibson Dunn Named Labor & Employment Winner for 2020 D.C. Litigation Department of the Year

U.K. Employment Law Considerations for Companies Responding to COVID-19 and Planning for a Return to the Workplace

Employer Liability and Defenses from Suit for COVID-19-Related Exposures in the Workplace

Webcast: Returning to Work: Health, Employment, and Privacy Considerations and Constraints as Businesses Resume Post-Quarantine Operations in the U.S.

Preparing For A Surge In Virus-Related Whistleblower Claims

Gibson Dunn Earns 84 Top-Tier Rankings in Chambers USA 2020

New York Empire State Development Corporation Further Updates Guidance on Businesses Deemed Essential Under Governor Andrew Cuomo’s “New York State on PAUSE” Executive Order

COVID-19: Short-Term Reduction of Personnel Costs under German Labor Law