Jessica Taub Rosenberg, partner and rising star in the Employment Practices and Litigation Group at Kasowitz Benson Torres, speaks with Benchmark research analyst Brittany Sharoff about her employment litigtion practice, the #MeToo movement and sexual harassment, and issues employers face with non-competes and restrictive covenants.
When we last spoke – you described your specialties, which seemed to be in sexual harassment and non-compete/restrictive covenant litigation. Are those still the two areas you spend most of your time on?
Sexual harassment litigation has been extremely prevalent in the last year, spurred on by the intense media attention that the #MeToo movement has engendered. We’ve seen a major uptick in complaints against both individuals and employers. I’ve handled a number of high profile #MeToo cases, and am currently defending a managing director of Dentons, one of the largest global law firms, in a case brought by another Dentons employee alleging sexual harassment. It’s a high stakes matter for our client and he came to us because we have a record of successful defense in this area. Last year, I successfully defended an individual client at trial in New York Supreme Court against sexual harassment claims. It was a major victory when the jury came back with a verdict that the alleged harassing conduct never even occurred. I think many of these recent cases are instances of a plaintiff making false claims, which is a terrible misappropriation of the struggle and suffering of women who have experienced real sexual harassment.
As you point out, another major focus of my practice is non-competes and other restrictive covenants. I regularly advise employers in the early stages of hiring new talent or a team to help the employers avoid litigation. Other times, I help employers enforce their restrictions, and that’s where our exceptional litigation experience aids us in navigating these restrictions – our adversaries know that we are willing to enforce the restrictions in court if necessary, and that we have had great success doing it. I also help clients ensure that their confidential information is protected if their employees leave, and ensure that their employees adhere to their ongoing post-employment obligations.
And am I missing any other focuses of your practice?
I litigate other discrimination cases, including based on age, race, religion or sexual orientation. I handle disputes that arise out of terminations and layoffs, wage claims under the Fair Labor Standards Act and state labor laws, as well as breach of contract actions with respect to compensation or bonus payments. I also provide counseling and training on employment best practices and policies to in-house counsel, human resources executives, boards of directors, and senior management, with the ultimate goal of litigation avoidance.
And, because I have a background as a criminal prosecutor in the New York County District Attorney’s Office, I regularly handle internal investigations with respect to employee misconduct. No two days are the same and no two cases are alike, which is what makes employment law interesting. It’s a very broad practice, with a very human element.
Do you tend to specialize in one or two industries, or do you have clients across all areas?
While we have represented clients in virtually all of the major industry segments, I have developed a strong roster of clients in the creative media and luxury fashion industries, including Elie Tahari and Rachel Roy. I also have very strong real estate experience, which ties into our firm’s deep real estate transactional and litigation expertise. I handle all employment litigations for Douglas Elliman, one of the largest real estate brokerages in the country. And finally, we do a lot of work with private equity and hedge funds; their employees tend to have very complex compensation agreements.
There have been significant changes to the law recently, both in New York and across the country. The Supreme Court issued a decision regarding employee arbitrations and California’s Independent Contractor test, and New York changed the law relating to asking potential hires about their previous compensation. How do you address these changes for clients?
When a new law or regulation comes out, or a significant court decision is published, the challenge is that there’s frequently not much guidance on how to comply with it. My clients typically call me for advice on particular issues in light of the change in law, and there’s not always a clear-cut answer. For example, New York’s new prohibition on asking a candidate about his/her salary history has been a real challenge for many employers, especially in the financial services industry, and has raised questions about how to fairly offer a salary and what to do if a candidate volunteers the prohibited information.
I work closely with my clients to understand the nuances of the issue at hand, and after careful consideration, I try to provide thoughtful, practical advice. We need to apply the law in a practical way that takes into consideration our clients’ business needs.
We are seeing a raft of large corporations and even law firms facing extremely serious sexual harassment allegations. You try cases and are not afraid to be aggressive if necessary. Is that something that companies are looking for when they’re seeking a law firm to represent them?
Definitely. Our clients seek us out when they need a powerful advocate. Employers look to our employment team and me when they want a firm to take a strong stance against either a frivolous claim or an employee who is trying to take advantage of the employer. My clients know that my firm’s employment litigation team can and will go the distance if necessary to win for them. We don’t make threats idly, and we have a reputation for winning at trial.
What about internal investigations for sexual harassment claims?
An internal investigation is an important tool to help inform an employer’s strategy, and can influence whether an employer should terminate an employee or vigorously defend false allegations in a lawsuit. I have certainly conducted internal investigations that resulted in a finding of misconduct, harassment or discrimination and then advised the client to terminate the offending employee. Other times, I’ve found allegations to be fabricated and advised the client how to proceed accordingly.
Changing track to the other sweet spot of your practice, the non-compete/restrictive covenant space, are there any trends in enforcement given the current hot job market?
Employers are enforcing these restrictions on a regular basis to protect their company and their confidential information. It’s interesting that many employees, especially those with long tenures, often don’t appreciate that they are bound by restrictions in agreements they signed upon being hired. I’ve seen a lot of employees who are surprised to learn that their employers will enforce such restrictions. We do a lot of negotiating, but sometimes need to run to court to obtain a temporary restraining order.
Also, employers have gotten a lot smarter about narrowly tailoring these covenants so that they hold up in court. We don’t see as many that are overly broad and therefore less likely to be enforced – for example, where the non-compete term is extremely long, or the geographic scope is not reasonable. Still, there’s a lot of litigation, because frankly, too many employees think employers will not seek to enforce their restrictions.
Are there any trending issues in employment litigation that you consider game-changers?
There’s a lot of fear in the workforce right now. Plaintiffs’ attorneys are seizing the momentum of the #MeToo movement to bring claims against large institutions based on facts that a few years ago they may have advised would not hold up. Sexual harassment issues are in the news every day, and companies are worried about being accused of not handling harassment issues properly. The threat of litigation and a public filing can have meaningful economic consequences for shareholders and investors – and that gives a lot of leverage to plaintiffs’ attorneys.
New York State has responded and created new laws requiring that every employer provide training on preventing sexual harassment, and mandating that settlement agreements relating to sexual harassment cannot be confidential unless the victim elects it to be confidential. The training requirement is forward thinking – there’s a lot of hope that it will help shift the culture and provide a safer workplace. It remains to be seen whether making issues more transparent will help decrease the violations of the law, or if it will have the perverse effect of increasing the number of people making false claims to take advantage of the law becoming more expansive. If employers are spending more money defending litigation, that’s not helpful. There’s some concern that, on balance, women may be less likely to be hired if employers are concerned about becoming subject to harassment claims. That would be a very unintended and negative repercussion of our current heightened sensitivity to harassment.
It sounds like we will have to check back with you next year to see how this is playing out in the workplace and the courtroom – the prevalence of labor and employment issues make this so important to so many of us.
Employment law touches virtually all of us. We can expect more changes coming from both lawmakers and the courts that will make a strong impact on the workplace.