Practice

Labor and Employment

Strategic advice and litigation defense for high-stakes individual and class action matters

Clients turn to us when they face high-profile matters that require aggressive litigation, policy advice, or confidential investigations. Whether your matter involves one executive alleging wrongful termination, multiple employees claiming harassment or thousands of workers in a potential class action, we have the experience to guide it to resolution. In addition to our trial practice, we also advise businesses, non-profits and high-net-worth individuals on employment-related issues, and counsel both executives and employers on employee mobility and trade secret matters.

Services

We help employers resolve their most important labor and employment issues, including:

Wage and Hour Disputes

  • Meal and rest periods, overtime, minimum wages 
  • Off-the-clock work
  • Regular rate of pay

Employee Classification

  • Gig economy
  • AB 5 matters
  • Exempt workers
     

Harassment and Discrimination 

  • Sexual harassment
  • Whistleblower retaliation
  • Discrimination

Employee Mobility 

  • Trade secrets
  • Executive departures
  • Restraining orders
     

Clients

We work with clients in industries such as financial services, technology, retail, entertainment, pharmaceuticals, higher education and more, including:

  • 99 Cents Only Stores
  • Chan Zuckerberg Initiative
  • Instacart 
  • NBCUniversal 
  • Square, Inc.
     
  • Amgen, Inc.
  • Conduent
  • Intel Corp.
  • PayPal Holdings, Inc. 
  • University of California
  • Boeing
  • Eat24/Yelp, Inc.
  • Lyft
  • See’s Candies Shops, Inc. 
  • Warner Bros.
  • Carrington Mortgage 
  • Guardsmark
  • Morgan Stanley
  • Southern California Edison 
  • Wells Fargo & Co.
     

Related Practices

Team

We have gravitated to a focused, partner-driven model that draws on outstanding attorneys, including three partners who are individually ranked in Labor & Employment - California by Chambers USA. Our team includes:

Malcolm A. Heinicke Terry E. Sanchez Joseph D. Lee
Katherine M. Forster Martin D. Bern Laura D. Smolowe
Margaret G. Maraschino Miriam Kim Carolyn Hoecker Luedtke

Experience

Few firms in California attract as many challenging employment defense cases. Our work includes:

  • Wage and Hour Litigation
    We’ve handled many class actions alleging California and federal wage-and-hour law violations, winning our clients dismissals, de-certifications and other precedent-setting verdicts, including:  
    • See’s Candies in using a fact-gathering campaign to demonstrate that their break policies were lawful when statistical analysis of employee timecards suggested otherwise.
    • Merrill Lynch in settling a nationwide class action covering more than 21,000 financial advisors, setting the standard for such settlements throughout the industry.
    • Carrington Mortgage Services in defeating class certification in a class action alleging that 11,000 employees were not properly paid for overtime work.
    • 99 Cents Only Stores in defeating class certification in a wage-and-hour class action for alleged off-the-clock work arising from store security policies.
  • Employee Classification
    We’ve been at the forefront of employee misclassification matters even before California’s Assembly Bill 5 (AB 5) created new opportunities for independent contractors to claim they are entitled to employee benefits. Our work includes:
    • Lyft in response to class actions brought in California by Lyft drivers, the California Attorney General, and several city attorneys, and in Massachusetts and the District of Columbia by Lyft drivers, alleging they were misclassified as independent contractors.
    • Instacart in using strategic enforcement of the company’s arbitration agreement, and an anticipated change of venue motion, to obtain dismissal of a proposed class action based on misclassification claims.
  • California Private Attorneys General Act (PAGA)
    Originally enacted to help the state regulate its underground economy, PAGA allows employees to sue for almost every alleged labor code violation, creating new challenges for employers. Our deep experience with PAGA matters includes:
    • 99 Cents Only Stores in resolving a PAGA action involving over 30,000 employees for just $289,000 after causing the plaintiffs to abandon most of their claims through aggressive motion practice.
    • Martin Luther King, Jr., Community Hospital in a PAGA and class action suit over payment for time spent in required pre-shift COVID-19 screening.
    • Multiple major retailers in so-called suitable seating cases, all of which have resolved at various stages at an extraordinary discount – some for less than a penny on the dollar.
  • Harassment and Discrimination
    We are frequently asked to lead confidential investigations involving allegations of workplace misconduct, counsel clients on litigation and compliance matters, recommend policy changes and help develop communication strategies with respect to these challenging issues. Our experience includes:
    • Warner Bros. in an internal investigation related to reports of alleged misconduct on the set of “Bachelor in Paradise.” We helped manage media relations and threatened litigation, and helped the show return to production with new safety guidelines.
    • Persuading a federal court to abstain from interfering with sexual-harassment disciplinary proceedings against the former Dean of the UC Berkeley School of Law.
    • A major retailer in an investigation by the California Department of Fair Employment and Housing into sexual harassment allegations made by multiple claimants.
    • A specialty retailer in an internal investigation of alleged sexual abuse of a minor employee by a high-level field manager.
  • Employee Mobility
    We have performed substantial work in the employee mobility space, advising companies on their rights to protect their intellectual property and executives on their rights to change jobs within confidentiality-driven industries. Our experience includes:
    • Intel Corporation in obtaining a temporary restraining order against a former employee who allegedly stole trade secrets before leaving for a competitor.
    • A high-level technology executive in multi-forum litigation concerning the executive’s move to a California employer from an out-of-state rival.
    • Advising Amgen on the legal issues around restrictive covenants in the employment sphere and their enforceability.

Case Studies

We take an innovative and aggressive approach to employment litigation, helping our clients overcome broad challenges and setting industry-wide precedents: 

  • Precedent-Setting Application of Federal Law to a California Labor Dispute
    Client: GardaWorld

Like other companies in the security industry, GardaWorld – one of the world’s largest – had struggled for years to balance California employment laws, which require armored car drivers to take mandatory meal and rest breaks, with a job that requires drivers to be alert and in a position to protect themselves, the public and their assigned valuables at all times.

GardaWorld, a Canadian multinational, first engaged Munger, Tolles & Olson to fight this issue in 2018.  We went on to win a first-of-its-kind summary judgment ruling that held as a matter of law that GardaWorld could use “on-duty” meal periods for armored car driver-messengers.

In 2019 and 2020, Munger, Tolles & Olson went on to effectively solve the meal and rest period issues for GardaWorld, and the entire industry, by obtaining rulings that federal law preempts California’s meal and rest period laws as applied to armored car drivers. In its ruling, the court found that Department for Transportation regulations and an administrative pronouncement prevent California from enforcing rest period requirements in this context.

Through these victories, the firm changed the legal landscape for the entire armored guard industry by relieving GardaWorld and others from pending and significant class liability. On the heels of these wins, we moved north, where GardaWorld – then represented by other counsel – had suffered an adverse class action verdict and lost appeals that ran all the way to the Washington Supreme Court. Taking over the matter, our team argued that the preemption decision applicable to California would eventually apply to Washington employees. Based on this argument, the plaintiffs agreed to accept only a fraction of the judgment amount, and, in February 2020, the court granted final approval for the settlement of these actions. Since then, the firm has assisted GardaWorld in obtaining a forward-looking exemption from Washington’s state law meal period requirements.

Media Coverage: Judge Says Calif. Meal Rule Can't Protect Armored Car Drivers

 

  • Defending a Client and Key Evidence in a Wrongful Termination Suit
    Client: Wells Fargo & Company

In this high-profile case, we successfully defended Wells Fargo after it terminated the employment of four senior foreign exchange executives after they manipulated rates on a $12 billion deal for the U.S. chain Burger King to purchase the Canadian chain Tim Hortons. Several of the bankers involved asserted claims and various lawsuits against the bank, but in all cases, we successfully argued that the bank acted lawfully in terminating their employment, and the lawsuits were dismissed.

In one case, the plaintiff argued that the key evidence of their misconduct was obtained through an allegedly illegal – and therefore inadmissible – telephone recording and sought over $30 million in damages as well as exclusion of the recording in the underlying case. After a two-week trial, and a one-hour deliberation, the jury returned a unanimous verdict for Wells Fargo on the merits of the case and the bank’s procedural defense. The court awarded costs to Wells Fargo as well. Following a subsequent ruling that the tape recording would come into evidence in the underlying employment action, we obtained the dismissal of the plaintiff’s case with prejudice.

Media Coverage: Wells Fargo Says Ex-Trader Can't Claim Privacy on Phone Call

News

Malcolm Heinicke Named Top Labor and Employment Lawyer

Malcolm Heinicke Named Top Labor and Employment Lawyer

Munger, Tolles & Olson litigator and Co-Managing Partner Malcolm Heinicke was recognized as a Top Labor and Employment Lawyer in California by the Daily...
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See’s Candies Wins Class Decertification Victory in Meal Breaks Suit

See’s Candies Wins Class Decertification Victory in Meal Breaks Suit

Munger, Tolles & Olson secured a victory for its client, See’s Candies, when the California Court of Appeals rejected a proposed statewide employment...
Read More
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