Mark R. Thompson

Mark R. Thompson

Orrick, Herrington & Sutcliffe LLP

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Latest Publications


Veterans Returning to Work After Military Service May Not Be Discharged Except “For Cause”

The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301–4335, imposes various obligations on employers with respect to members of the U.S. military returning to their civilian...more

7/29/2016 - FMLA Hiring & Firing Military Service Members USERRA Veterans

Court-Sanctioned Employee Theft? Self-Help Discovery May Be Protected Activity In Discrimination Cases

Recently in Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., No. SJC-11901, 2015 WL 10937776 (Mass. May 31, 2016), the Supreme Judicial Court of Massachusetts held, as a matter of first impression, that...more

6/16/2016 - Anti-Retaliation Provisions Corporate Counsel Gender Discrimination Protected Activity Sarbanes-Oxley Title VII

Can You Hear The Whistle Blowing?: OECD Releases Report On Global Whistleblower Protections

The Organisation for Economic Cooperation and Development (“OECD”), an international organization whose goal is to promote policies that will improve the economic and social well-being of people across the world, recently...more

4/25/2016 - Anti-Retaliation Provisions Corporate Counsel OECD Private Sector Public Employees Whistleblowers Young Lawyers

The Commission Speaks: Guidance for Employers Regarding the New York City Fair Chance Act

On June 29, 2015, New York City Mayor Bill de Blasio signed into law the Fair Chance Act (the “Act”), which prohibits employers from inquiring into the criminal backgrounds of certain job applicants in the initial stages of...more

11/23/2015 - Best Practices Criminal Background Checks Employment Discrimination Fair Chance Act Hiring & Firing

Big Data, Big Problems: The Liability Pitfall Lurking Beneath the Shiny Surface of “People Analytics”

The use of big data in employment decisions—a practice often referred to as “people analytics”—has exploded in recent years. Lately, however, the concept is gaining more and more attention not only for its appeal of faster...more

11/4/2015 - Analytics Big Data Class Action Disparate Impact Dukes v Wal-Mart EEOC Employer Liability Issues Employment Discrimination Employment Policies Hiring & Firing Popular Recruitment Policies Software Technology Sector

The Gay Marriage Decision: Support for Title VII Employment Discrimination Claims?

Following the excitement of the same-sex marriage decision by the U.S. Supreme Court on June 26th, the question remains how much the Opinion may impact Title VII employment discrimination claims. Based on our reading of the...more

7/8/2015 - Anti-Discrimination Policies Corporate Counsel Discrimination Equal Protection Marriage Marriage Equality Obergefell v. Hodges Popular Same-Sex Marriage SCOTUS Sex Discrimination Title VII

New York City “Bans the Box”—Inquiries Into Applicants’ Criminal Histories Now Significantly Restricted

On June 10, 2015, the New York City Council passed the Fair Chance Act (the “Act”), which prohibits employers from inquiring into the criminal backgrounds of applicants in the initial stages of the employment application...more

6/15/2015 - Ban the Box Best Management Practices Criminal Background Checks Criminal Records Discrimination Employer Liability Issues Enforcement Hiring & Firing Job Applicants Local Ordinance NYCHRL Screening Procedures

Employers Finally Get a Break—Court Reverses $90 Million Verdict and Holds That Employers Are Not Required to Relieve Employees of...

On December 31, 2014, the Court of Appeal for the Second District of California held in an unpublished opinion that employers are not required to relieve employees of all duty during rest periods mandated by California state...more

1/13/2015 - Appeals Corporate Counsel On-Call Employees Rest and Meal Break Reversal Right to Control Security Guards Summary Judgment Wage and Hour

The Supreme Court Hears Oral Argument in Busk: Could Employers Have to Pay for Employee Time Spent Passing Through Security?

On October 8, 2014, the U.S. Supreme Court heard oral argument in Integrity Staffing Solutions, Inc. v. Busk. In Busk, plaintiffs allege that, under the FLSA, their employer should have compensated them and other warehouse...more

11/19/2014 - FLSA Integrity Staffing v Busk Oral Argument SCOTUS Security Clearance Wage and Hour

Secretly Working Off The Clock—You Don’t Get Paid For That!

Following principles that federal courts have applied in similar cases under the Fair Labor Standards Act, a California appellate court recently confirmed that employers are not liable under the California Labor Code for...more

6/17/2014 - Actual or Constructive Knowledge Employer Liability Issues Exempt-Employees FLSA Wage and Hour

Post This! Private Employers Not Required to Display Pro-Union NLRB Posters

The National Labor Relations Board (“NLRB”) recently announced that it would not seek Supreme Court Review of two U.S. Court of Appeals decisions invalidating the NLRB’s Notice Posting Rule, which would have required most...more

1/15/2014 - Employee Rights NLRA NLRB Notice Requirements Posting Requirements Unions

Oh, F*©k No: Administrative Law Judge Rules that Employees’ Expletive-Laced Facebook Posts are not Protected Under the National...

With the increasing prominence of social media, employers have been rightfully concerned about the impact of employees’ out-of-work statements on the work place—particularly when it comes to the reputation of the employer. In...more

11/20/2013 - NLRA NLRB Protected Concerted Activity Social Media Social Media Policy

“Picking Off” Plaintiffs in FLSA Collective Actions: Genesis HealthCare Corp. v. Symczyk

Earlier this month in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), the U.S. Supreme Court held that it is permissible for defendants to “pick off” plaintiffs in FLSA collective actions. In jurisdictions that...more

5/7/2013 - Collective Actions FLSA Genesis HealthCare Genesis Healthcare Corp. v. Symczyk Mootness Rule 23 SCOTUS

Orrick Submits Amicus Brief on Behalf of SIFMA Urging Fifth Circuit to Reject Two-Step FLSA Certification Procedure

Orrick, on behalf of its client, the Securities Industry and Financial Markets Association (“SIFMA”), recently filed an amicus brief in support of a petition for writ of mandamus filed by Wells Fargo in the Fifth Circuit...more


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