Lynne Hermle is an employment partner at Orrick Herrington & Sutcliffe, and is consistently recognized as one of the best employment lawyers in the country. She has a long track record of jury trial wins and has consistently defeated certification in class actions. Lynne has special expertise in the retail and tech industries.
Q: What originally drew you to this area of practice?
A: It’s the most fascinating area of practice in the world. It’s all about people; it’s all about their bad behavior. I often say, if people didn’t behave as badly as they do in the workplace I wouldn’t have the college fund I need now that my son in college. It’s all about how people treat each other, and talk to each other, and behave badly.
Q: How have you seen employment law change and evolve over the course of your practice?
A: The practice of employment law has changed extraordinarily over the past 30 years in which I’ve been practicing. In the early ’80s, if you began to practice, it was not really litigation focused. There would be administrative proceedings before the EEOC or the NLRB. There might some collective bargaining arbitrations and negotiations. But we didn’t really see many employment lawsuits; there were only a handful.
Then in the mid ’80s the litigation took over and we began to see a lot of contract and covenant claims, and that just continued to expand. The litigation got more and more complex. If you began three decades ago, as I did, you were doing pretty much small cases: Jones v. Joe’s Autobody, and Mr. Jones might claim that he was wrongfully fired. Over the years, we started to get the tidal wave of wage and hour class actions and discrimination class actions. What happened is the poor step-children of the litigation practice—employment lawyers—began to handle some of the most procedurally and substantively complex class cases in the history of American litigation. So now if you talk to an employment lawyer who has significant litigation practice, the odds are it’s on par with any complex litigation in any area of practice.
I realized the other day when a client referred to me their consumer and other class action counsel that I’ve defended about 150 class cases, and these lawyers who do very big cases have done maybe a tenth of that.
Q: In your practice can you point to a time where you can say, “this was the turning point; this is where it went from small to big and it’s never going to be the same again”?
A: I think so. I would say in the mid-’90s I got my first wage and hour class action. It was the first one I’d ever seen. It was one of the first that had been filed in California. We really hadn’t seen many of them. That was the case for Burlington Coat factory, with Steve Zieff on the other side. We pretty much made up the strategy as we went along; we figured it out. We were before a good judge, and we got class certification denied. Because of that win, as the cases started to come through, my group was hired more and more frequently, and at that point, things did really take off.
The other interesting thing. At about the same time period, maybe a little earlier, we saw more cases going to trial—single plaintiff cases— and I began to try more cases; and because most cases settle, the trials that do go to a jury verdict tend to get a little publicity. I think in the late-90s and after that, if you were a lawyer who knew how to try a case before a jury, your practice became different. It became more jury trial focused.
Q: Would you say that what you do now is really different from what you imagined you’d be doing when you started out in this area of practice?
A: I would say everything about my life is different than what I would’ve expected. I would never have seen myself in a large law firm; that’s an extraordinary surprise to me how well I fit here and how much I care about this firm. That’s never anything I would have expected. I wouldn’t have expected myself to be a defense lawyer; I went through law school assuming I would be a plaintiffs lawyer, possibly a prosecuting lawyer for the EEOC or another agency. I’m not sure I’d seen myself married with a kid in college either—everything about my life is a surprise.
Q: What types of cases do you handle today and who are your typical clients?
A: It’s a mix and that’s changed over time as the practice changed. The first real tidal wave of class cases were against retailers. That was the heart of it; and California retailers basically got the snot sued out of them. Virtually every major California retailer had at least one wage and hour class action, and some have had over 20. So in the late ’90s, the heart of my practice was retail class actions, and I’ve always had a large tech component. I’ve always represented a fair number of Silicon Valley employers. As the class actions wound out of the retail space, they moved into tech. Now we see in the class cases that primarily being sued are the Silicon Valley employers and other large employers. So my practice has a small group of emerging companies, some finance and venture capital, and the heart of it really these days is Silicon Valley with a small sprinkle of retail.
Q: Would you say there are any state or federal laws that have recently gone into effect that have impacted your practice?
A: The developments that have really impacted employment law have been mostly caselaw developments. Most recently, that has come from the U.S. Supreme Court’s decisions in Concepcion and Stolt-Nielsen, which emphasized FAA’s preemption effect and the importance of upholding the parties’ contractual arbitration agreements. That created an enormous body of cases and an interest for the first time in decades—for California employers in particular—to enter into arbitration contracts with employees. The funny thing about that is that’s sort of where we started three decades ago: you were doing arbitrations, but they were collective bargaining arbitrations. Now we’re coming back full circle and starting to see more arbitrations, whether for a class or individual plaintiffs.
Q: Do you think the expansion of arbitration will make it easier for your clients to resolve issues as they come up?
A: It’s a mixed bag. I had an arbitration I finished Monday and Tuesday of this week, and there was nothing about it that was easy. I think the arbitrators had a harder time handling opposing counsel who was very offensive in some of his conduct. The discovery disputes are more difficult for arbitrators to control. In some ways, it’s the Wild West of litigation.
On the other hand, if the California Supreme Court upholds the decision in Iskanian, saying because of the U.S. Supreme Court precedent, parties can contractually agree to class action waivers, that will impact class actions in California. But what we’ve seen over the last five years is many plaintiffs filing outside of California, so I would still expect to see those cases going forward throughout the country.
Q: Do you see the hostile treatment of Concepcion by state courts changing over the next couple of years?
A: I think the California state courts have been enormously resistant to what the U.S. Supreme Court is laying out very clearly, and arbitrators have also been resistant, and I hope that changes. The law seems as a clear as a bell, but it will depend on what the California Supreme Court does with the Iskanian case. What we’ve seen the California Supreme Court do in wage and hour class actions is typically say, “we are going to create every inference we can for the plaintiffs, the employees.” If they continue to take that view, it’s not clear what they’re going do about Iskanian and the old Armendariz decision.
Q: With regard to class litigation in employment law, do you see any new techniques that weren’t utilized before?
A: A couple of things. Employers have been very reluctant to implement arbitration programs. I think we’ll see more of that happening, depending on what the California Supreme Court does with the class-action-waiver issue. I personally have seen an enormous rise in gender discrimination cases in my practice. Last year at one point I realized I had gender discrimination cases in virtually every industry that’s present in California. Typically high level cases, sometimes executive, retail, tech, venture capital, health care, virtually every area was being hit with those cases. That’s quieted down a little; I suspect it had to do with a very large Novartis decision, but that has been a very interesting trend.
Q: Are there similar trends in single-plaintiff litigation?
A: The gender cases that I’ve been seeing are all single-plaintiff cases. After Dukes, it’s very hard for even very good plaintiff’s firms to bring large class action gender or other discrimination cases.
Q: Looking forward, do you see anything happening in the courts or the legislature that will impact your clients?
A: What’s going to be fascinating is how this crisis in the courts impacts employment litigation. We have many state courts that are inadequately funded. In San Francisco, you have to bring your own court reporter. In LA, we now have trial courts closing. The last time I did a class certification argument, the judge told us, “you won’t be back to me, my chambers and courtroom will be closing as part of the shutdown.” Of course with all the really awful disputes in Congress, we see federal courts now being impacted. I don’t know what all of that is going to mean to those of us who actually try cases, but I suspect it will mean a much longer period to get to a jury trial and much more bumps along the way as we get there. Courts in this state of financial crisis just aren’t as available for people.
If Iskanian comes along and approves class action waivers, that’s going to start to encourage even more employers to enter into arbitration agreements with class action waivers. Both of those things are going to be interesting. Actually, by the time they play out, my career may be over because I’ve been around pretty long already.
Q: If you had to predict the next big trend in employment litigation, what should we expect coming around the corner?
A: Well, never underestimate the ability of smart plaintiffs lawyers to come up with new class actions. If you look at the suitable seating cases brought against retailers under the California Wage Orders—we don’t see many of those now; they didn’t work out as the plaintiffs bar thought they might. At least one plaintiff’s lawyer admitted that the way they came about was by having associates read the labor code and look for anything that may create a hook into the next wave of class actions. I wouldn’t be at all surprised if we see something new and innovative there focused on the wage orders or the thousands of provisions in the labor code. I think gender discrimination is going to stay hot. I’ve seen some pregnancy cases lately—that’s possibly a new area; disability cases have stayed pretty steady—and of course the law outside of California has gotten more pro-employee friendly with amendments to the ADA.
I think litigation will stay strong. For me, the last five years were extraordinary because my employment law colleagues and I were (for the first time) becoming the heart of the recruiting battle at large law firms. And as I mentioned, in some ways, employment litigators were the poor step-children decades ago because their cases were so small. But now that the cases are so big, and so expensive, and so important to clients, and can demand a more significant billing rate, you see us being a more desirable practice in large litigation firms. There’s an awful lot of recruiting going on, and you will see folks moving—not me—but other people moving from firm to firm, the way IP lawyers have been doing for a long time.