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Leaders of the Pack

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					             Cover Story                    The Best Defense
               Leaders of the Pack
                                                                                               Human Resource Executive® and Lawdragon have determined
 Top                                                                                           the following 10 employment attorneys to be at the very top of

  10                                                                                           their profession based on curriculum-vitae analyses, evaluations by
                                                                                               clients and peers, and other various criteria (see sidebar, page 24).


                         Mark S. Dichter
                                                                                                                                          Howard L. Ganz
                         Chair of Global Labor and Employment Practice
                                                                                                                                          Partner, Co-Chair of Labor and
                         Morgan Lewis & Bockius LLP, Philadelphia
                                                                                                                                          Employment Law Group and Co-
                                                                                                                                          Chair, Sports Law Group
                         Background/Achievements: Spanning 39 years, Dichter’s career has involved
                                                                                                                                          Proskauer Rose, New York
                         representing and counseling major employers on a broad range of employment-
                         law issues, including employment discrimination, sexual harassment, wage-
                                                                                                                                            Background/Achievements: Ganz is
                         and-hour laws, and whistleblower cases. Currently chair of the labor and
                                                                                                                                            a graduate of Colgate University and
                         employment practice for Morgan Lewis, where he has spent his entire career,
                                                                                                                                            Columbia Law School, and he joined
                         Dichter has been recognized as the World’s Leading Labour and Employment
                                                                                                                                            the firm in 1968 and has been a partner
Lawyer by Who’s Who Legal. He is listed in the highest tier for National Labor and Employment Practice
                                                                                                                  since 1974. He has served as principal outside labor counsel
in Chambers USA 2007 and has been ranked No. 1 for “Most Prestigious” Labor and Employment
                                                                                                                  for the National Basketball Association for more than 20 years,
Practice in the Vault 2008 Associate Survey. Holding a B.S. degree from Drexel University and a J.D.
                                                                                                                  and he has represented Major League Baseball in its collective-
degree from the Villanova University School of Law, Dichter has served as chair of the American Bar
                                                                                                                  bargaining negotiations with the MLB players’ union as well. He
Association’s Labor and Employment Law Section. Key representative cases include U.S. Department
                                                                                                                  is a former chair of the sports law committee of the Association
of Labor vs. Wyeth Pharmaceuticals, a gender-compensation case, and Kobayashi vs. Toyota Motor
                                                                                                                  of the Bar of the City of New York, and he has been named as
Corp., a sexual-harassment case.
                                                                                                                  one of the World’s Leading Labor and Employment Lawyers,
Biggest HR Mistake He’s Seen in His Career: Failing to properly document things, properly
                                                                                                                  one of The Best Lawyers in America, and as one of the 100
communicate and properly investigate.
                                                                                                                  Best Lawyers in New York. Key cases include Moran vs. Selig,
Most Significant Change or Development in Employment Law He’s Seen in His Career: The
                                                                                                                  a class-action race-discrimination suit involving retired white
increased litigiousness of employees and emergence of the “employment-law lottery.” The shift of
                                                                                                                  players; and Womens’ Committee vs. NBC, a large, class-action
employment laws from promptly resolving matters in an informal way through the grievance process to
                                                                                                                  sex-discrimination suit that involved discrepancies over pay.
using the tort system with employees wondering, “How quickly can I get to a jury and try to convince
                                                                                                                  Biggest HR Mistake He’s Seen in His Career: Overzealous
them that they should punish this company and give me a lot of money?”
                                                                                                                  adherence to company policies despite the lack of necessity.
                                                                                                                  He cites the example of a terminated older worker who was
                                                                                                                  not allowed to return to his desk to retrieve photos of his
                         Dennis P. Duffy
                                                                                                                  grandchildren because of the company’s “sabotage” policy.
                         Partner, Chair of Labor and Employment Practice
                                                                                                                  “There’s a time and place for everything,” Ganz says.
                         Baker Botts LLP, Houston
                                                                                                                  Most Significant Change or Development in Employment
                                                                                                                  Law He’s Seen in His Career: The litigation explosion that
                          Background/Achievements: Duffy, a graduate of Princeton University and
                                                                                                                  resulted from the enactment of Title VII of the Civil Rights Act
                          the University of Virginia School of Law, joined the firm in 2006 after a five-year
                                                                                                                  that essentially created the field of employment law.
                          stint as vice president and associate general counsel for labor and employment
                          at Time Warner. He previously served a two-year clerkship for a federal district
                          judge and was the first general counsel of the U.S. Office of Compliance. He
                          has taught law at both the University of Houston Law Center and the University                                  Paul Grossman
of Virginia. He serves on the State Bar of Texas’ Racial Diversity in the Profession Committee, and he is                                 Partner
a fellow of the College of Labor and Employment Lawyers as well as an advisory board member at the                                        Paul Hastings, Los Angeles
National Employment Law Institute.
Biggest HR Mistake He’s Seen in His Career: HR providing additional benefits or dispensation to                                             Background/Achievements:
employees who deserve to be fired, just because the company is concerned about getting sued. Also,                                          Grossman received his juris
making decisions on the fly when slowing the decision process down would lead to better results.                                            doctorate degree in 1964 from Yale
Most Significant Change or Development in Employment Law He’s Seen in His Career:                                                           Law School, where he was a member
The “tortification” of labor and employment law and the rise of wrongful-discharge theories in the                                          of the board of editors of the Yale
early 1980s combined with the 1991 Civil Rights Act, both of which created the possibility of not just                                      Law Journal. A partner at Paul
reinstatement and back pay, but also the possibility of substantial damage awards to plaintiffs.                  Hastings, Grossman represents major private employers in
                                                                                                                  all aspects of employment law. He also serves as general
                                                                                                                  counsel of the California Employment Law Council, an
                         Lawrence C. DiNardo                                                                      organization of approximately 50 of California’s largest
                         Partner                                                                                  employers. Grossman is the co-author of Employment
                         Jones Day, Chicago                                                                       Discrimination Law, an official book of the American Bar
                                                                                                                  Association that has been cited on multiple occasions by
                           Background/Achievements: DiNardo serves as chair of the labor and                      the courts of every circuit and the U.S. Supreme Court.
                           employment practice at Jones Day where he has spent the last eight of his              He recently co-authored a groundbreaking article in The
                           34 years of practice. With both undergraduate and law degrees from the                 Labor Lawyer entitled “Lies, Damn Lies and Statistics:
                           University of Notre Dame, DiNardo’s practice involves particular emphasis              How The Peter Principle Warps Statistical Analysis of Age
                           on employment-discrimination litigation, Fair Labor Standards Act/wage-                Discrimination Claims.”
                           and-hour cases and executive employment contract disputes. He is a Fellow              Biggest HR Mistake He’s Seen in His Career: Employers
in the College of Labor and Employment Lawyers and is listed in Who’s Who Legal. He has served                    giving employees discretionary pay without a release. When
as a visiting professor of law at Notre Dame Law School and as guest lecturer at DePaul University                letting people go, companies want to be nice and cushion
College of Law. DiNardo has published in the Journal of College and University Law and has made                   the blow by keeping them on the payroll for a month or two.
numerous presentations on employment law topics. Among his representative cases are Darryl Wayne                  “Then they get sued. … I’ve seen dozens and dozens of
Schackelford vs. Roadway Express Inc., a race discrimination and retaliation suit, and Sepulveda                  lawsuits that could have easily been avoided,” he says.
vs. Wal-Mart Inc. et al, involving the defense of Wal-Mart in a suit alleging assistant managers were             Most Significant Change or Development in Employment
misclassified as exempt.                                                                                          Law He’s Seen in His Career: The emergence of class-
Biggest HR Mistake He’s Seen in His Career: Misuse of the independent-contractor classification                   action lawsuits, especially in the wage-and-hour area.
on people who were actually statutory employees and employees for purposes of the Employee                        “When I began my career, there was really no such thing
Retirement Income Security Act and the benefits laws.                                                             as class-actions,” he says. “Then came the employment-
Most Significant Change of Development in Employment Law He’s Seen in His Career:                                 discrimination lawsuits of the ’70s and the wage-hour class-
Transformation of the labor practice from entirely a labor union, industrial relations, workplace-centered        actions in the ’90s, leading to today’s mass of class-actions,
regulatory practice into more of a litigation practice where there’s been a mushrooming of employment             including some in which hundreds of millions of dollars and
litigation in the courts, something that hardly existed before the late 1970s.                                    even billions of dollars are at issue.”


26      Human Resource Executive ®
             Cover Story                  The Best Defense
Top
  10 Leaders of the Pack
                                                                                                William J. Kilberg
                                                                                                Senior Partner
                                                                                                Gibson Dunn & Crutcher, Washington.

                                                                                                 Background/Achievements: A 1966 graduate of Cornell University,
                                                                                                 Kilberg earned his law degree in 1969 from Harvard Law School. He has
                        Lynne C. Hermle                                                          argued significant matters before the U.S. Supreme Court and the U.S.
                        Partner                                                                  Court of Appeals. Most recently, he successfully petitioned the Supreme
                        Orrick Herrington & Sutcliffe, Menlo Park,                               Court for a grant of certiorari in a major Age Discrimination in Employment
                        Calif.                                                                   Act case. In 2001, he successfully argued before the Supreme Court on
                                                                        behalf of the petitioners in Egelhoff vs. Egelhoff, an Employee Retirement Income Security Act case
                         Background/Achievements: Hermle is a           on appeal from the Washington State Supreme Court. He represented United Parcel Service before
                         member of firm’s executive committee and       the Supreme Court in Murphy vs. UPS, in which the court adopted a reading of the Americans
                         head of its Silicon Valley employment group.   with Disabilities Act advocated by UPS. He has also served as a White House Fellow and Special
                         Before joining Orrick, she was an in-house     Assistant to Secretary of State George P. Schultz. Kilberg was named the Top Employment
                         attorney for AT&T, where she handled labor     Litigator in the Washington metropolitan area by the Washington Business Journal in 2005.
and employment matters. Noteworthy cases at Orrick include              Biggest HR Mistake He’s Seen in His Career: Unexamined self-scrutiny by HR people. They
Maghribi vs. Advanced Micro Devices, in which she obtained a            do a lot of employee surveys without doing the front-end work of determining why they want to
quick defense verdict for her client, AMD; and Pi vs. IBM, in which     engage in this sort of scrutiny in the first place.
she successfully represented IBM in a hard-fought jury trial alleging   Most Significant Change or Development in Employment Law He’s Seen in His Career:
retaliation for sexual-harassment complaints. She also successfully     The increasing role of the professional plaintiffs’ bar as the union sector has shrunk, HR has
represented several large employers, including The Gap,                 become more sophisticated and the law has been expanded to provide many more protections.
Blockbuster and Burlington Coat Factory, in wage-and-hour class-        Unlike the union bar, the plaintiff’s bar is less interested in the future of the workplace and more
actions. She frequently lectures on trial advocacy issues. Hermle       interested in getting immediate relief for an individual.
received her J.D. from University of California’s Hastings College
of the Law in 1981. She’s been recognized as one of America’s Top
50 Women Litigators by the National Law Journal and serves as a                                 Garry Mathiason
faculty member at the National Institute of Trial Advocacy.                                     Shareholder/Partner
Biggest HR Mistake She’s Seen in Her Career: As companies                                       Littler Mendelson, San Francisco
become vulnerable to employment class-actions, resistance to
entering into severance agreements with disgruntled employees is                                 Background/Achievements: Mathiason is vice chair of Littler Mendelson
often a huge mistake. Most class-actions start as individual small                               and chair of the firm’s Corporate Compliance Practice Group, and is
grievances and are repackaged by plaintiffs’ counsel.                                            widely recognized as a leading authority on employment-law trends in
Most Significant Change or Development in Employment Law                                         the United States. A graduate of Northwestern University, he received his
She’s Seen in Her Career: The enormous rise in multi-plaintiff                                   law degree from Stanford University in 1971 and began his career with
litigation, including wage-and-hour class-actions, has the potential                             the National Labor Relations Board before joining Littler a year later. He
to result in changes throughout the American workplace—many of          has personally overseen more than 1,000 employment and labor litigation matters and currently
them not good for employees, including working women.                   defends employers in complex wage-and-hour and discrimination class-actions. He originated
                                                                        several of the firm’s preventive employment-law programs and drafted model legislation on
                                                                        workplace-violence prevention. He has appeared on every major television network and has
                                                                        delivered more than 300 presentations to the nation’s foremost business and HR organizations,
                        W. Carl Jordan                                  most recently on Littler’s Mandatory Wellness Initiative. He has written and edited more than
                        Partner, Co-head of the Employment              25 employment-law books and more than 100 published articles on workplace issues and has
                        Litigation and Labor section                    been widely quoted in major HR and business publications. He was also listed in the National
                        Vinson & Elkins, Houston                        Law Journal as among the nation’s 100 most influential attorneys and in the The Best Lawyers in
                                                                        America, Lawdragon and dozens of other rating services.
                         Background/Achievements: Jordan                Biggest HR Mistake He’s Seen in His Career: Failing to trust that HR policies are known and
                         represents companies in a variety of           followed without verifying (as in “trust but verify”).
                         industries in state and federal courts, as     Most Significant Change or Development in Employment Law He’s Seen in His Career: As
                         well as before various federal and state       the technology revolution has transformed the way people work and redefined the workplace,
                         agencies, including the National Labor         the most dramatic development has been the way in which 20th century employment laws (some
Relations Board, the Equal Employment Opportunity Commission,           written more than 50 years ago) are now being applied to the digital workplace.
the Occupational Safety and Health Commission, the Office of
Federal Contract Compliance Programs and the Texas Commission
on Human Rights. Jordan has been general counsel of the Texas                                     Theodore O. Rogers Jr.
Employment Law Council, an organization of Fortune 500-type                                       Partner, Chair of Employment and Labor Group
employers, since its founding in 1984. He has been recognized by                                  Sullivan & Cromwell, New York
The National Law Journal as One of the Best Employment Litigators
in the Nation. He graduated with honors from Harvard Law School                                    Background/Achievements: Rogers joined the firm in 1979 after
in 1974 and has been a partner at Vinson & Elkins for the past 33                                  receiving his juris doctorate from Harvard University (where he also
years.                                                                                             earned his bachelor’s degree), and has been a partner since 1987. He’s
Biggest HR Mistake He’s Seen in His Career: Reacting                                               been named as one of the New York Super Lawyers for 2006 and 2007,
emotionally or viscerally to situations where they are expected to                                 one of the Best Lawyers in America for 2006 and 2007, and Chambers
be trusted expert advisers. This is especially a temptation when an                                USA: America’s Leading Lawyers for Business for 2003 through 2007.
employee’s conduct is considered particularly egregious. Allowing       He is a fellow of the College of Labor and Employment Lawyers, a member of the executive
outrage, or even excessive compassion, to color one’s evaluation        committee of the New York State Bar Association’s Labor and Employment Law Section and
and perspectives on a given situation can often lead to flawed          a member of the advisory board of the Center for Labor and Employment Law of New York
advice and further problems down the road.                              University School of Law. Key cases include Vizcaino vs. Microsoft and Hughes vs. Microsoft,
Most Significant Change or Development in Employment Law                involving independent-contractor class-actions; and AFTRA vs. NBC, in which he defended
He’s Seen in His Career: Over the years, the legal and quasi-legal      MSNBC Cable against a petition to unionize news anchors.
issues employment lawyers and HR professionals must deal with           Biggest HR Mistake He’s Seen in His Career: HR executives moving too quickly to implement major
on a daily basis have become increasingly complex and nuanced.          employment changes due to an unwillingness to confront management with the need to do it right
The greater complexity of the law today requires them to operate        rather than fast. Also, HR practitioners giving employees the impression that their internal complaints
frequently within gray areas in which the best solution to an issue     will be kept in complete confidence, thereby complicating the employer’s ability to investigate.
is more dependent on informed, practical judgment than straight         Most Significant Change or Development in Employment Law He’s Seen in His Career: The
application of legal principles.                                        “overlawyering” of the workplace; the inclination of employees to make a federal (or state) case
                                                                        out of any workplace controversy or adverse decision has increased substantially in recent years.


28      Human Resource Executive ®

				
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