Employment Law in the Whistleblower and COVID-19 Era: An Interview with Michael Delikat
As a partner at Orrick, Herrington & Sutcliffe LLP, Michael Delikat is an industry leader in the field of employment law. He brings over thirty years of experience to the legal profession, and he is renowned for his legal acumen concerning whistleblower and sexual harassment claims. Michael is also a proud graduate of Harvard Law School.
The interview below was conducted in Spring 2022 and has been edited for brevity and clarity.
Harvard Undergraduate Law Review (HULR): You obviously have significant experience as a litigator. I'm curious as to what you would say is the best asset for a successful litigator.
Michael Delikat: I think that every attorney knows the rules of engagement, and then people tend to know the evidence and what the Federal Rules of Civil Procedure say. The best litigators bring a strategic view of the case by first finding out really what is the client's objective. I am for the most part defense counsel, except when I do things like enforcement of non-competes — we're plaintiffs in those kinds of cases. But other than that, I'm mostly defending claims after they've been brought. Some lawyers just jump into the case and ramp up as quickly as they can and throw as many assets on the case and start running up the time, which isn't even simply a way to increase the legal fees of the defense counsel so much as it is a tactic that makes the plaintiff's lawyer start doing a lot of work. That move makes it a lot harder to settle down the road because you're going to have to compensate the lawyer for his time, and the individual bringing the claim is not going to settle if he's got to make payments out of his pocket.
I think that getting a good understanding of what the client's true objectives are with a particular case is key because there are many cases that, with a good strategic approach, can get resolved. Good litigators bring that strategic mindset to the beginning of the case by understanding what the client's objectives are. What's the best way to get to the objective? Is the client open to early resolution through mediation or other alternate forms of dispute resolution, which have become much bigger over the years in terms of early alternate dispute resolution? In the old days, a lawsuit was filed, the war began, the discovery requests flew out, thousands of documents in hardcopy were reviewed, and boxes of documents were sent to the other side. Now, it's more [about] how can we resolve this sooner rather than later if it's an issue that can be resolved?
HULR: That makes a lot of sense—bringing that strategic focus seems key. Obviously, you have significant experience with employment law, which is somewhat niche. I'm curious as to your perspective on how #MeToo has changed the employment law landscape and the extent to which you foresee any additional changes in that landscape in the coming years.
MD: I think that #MeToo was a rude awakening to companies that it wasn't necessarily all going to be about legal claims in the context of sexual harassment because many of the claims that were made were done so in a period related to conduct that had occurred 10 years before, 15 years before, even five years before, but outside legal statutes of limitations. But nonetheless, even though there might not have been a legal claim that could be pursued in the courts, there were claims of significant reputational interest to the people being accused, and also to the companies that employ those individuals. And so, it created a whole new understanding of what's going to be acceptable and what's not going to be acceptable.
The other thing I think that was significant from #MeToo is that it wasn't important if there were strong legal defenses surrounding a particular claim and it wasn't important if you could win the claim on behalf of the accused or the accused company in court or in arbitration or wherever it was. Because the trial was taking place in social media, how can you employ someone to be the CEO of this company, after he engaged in conduct like that, without regard to whether or not it was true?
The third thing I would say that #MeToo did was it really brought to the fore that the legal standard under Title VII for harassment had been a severe and pervasive conduct, and it also related to the conduct being unwelcome because if the conduct was consensual, and not unwelcome, then there wouldn't be an issue as in a legal claim under Title VII. That went by the wayside, not as a legal matter, but as what counts with these issues. The power imbalance matters. So, if someone is a managing director, and we're dealing with somebody that's an analyst in investment bank, even though there might have been a relationship that was totally consensual, or where one person, even the person in the lower position came on to the person in the higher position, that doesn't seem to matter anymore. Because the idea is, well, if you're a person in a position of power, a relationship cannot truly be consensual, because the individual feels if they don't do it, it will have adverse consequences for that. I think it brought out that whole issue about the power imbalance, and even if it was totally consensual, as we understand that, that didn't really matter anymore.
HULR: Interesting. As far as employment law is concerned, there's a lot of discussion about unionization in the context of Amazon. I'm curious about your understanding of the employment law realm as it pertains to unionization moving forward, and whether you foresee additional unionization attempts in the future.
MD: Yeah, look, it's hard to say. With unions, I think that a couple of things have happened. One, the pandemic has heightened the economic differences between the haves and the have-nots; it's widened the gap. And in your Amazon situation, or in a fast-food setting or other kinds of settings, all of those people that had to work and expose themselves to the pandemic, because they were essential workers during the pandemic, did not share in the bump in business to an Amazon, which broadened social class distinctions. And as a result, unions seem to have more appeal, resulting in some successful organizing drives, irrespective of whether or not, under the current labor laws, they can actually get a better contract or a collective bargaining agreement.
In fact, under the law, the way it exists now, the only obligation the employer has is to bargain in good faith. They do not have to agree to any minimum set package; they don't even have to agree as part of a contract to continue the terms and conditions of employment that existed before the union. And so most big employers that you know of are non-union and believe it's best for their interest and also best for the employees to stay non-union, successfully avoiding having to enter into a contract. That's where the labor laws are. There's been proposed legislation in Congress trying to make the labor laws a little more favorable to employees and unions in terms of organizing, so we'll see what happens. But I definitely think that this Amazon thing will obviously spur more successful organizing drives on that front. The question will be whether or not they'll be able to actually get agreements that have real gains for the employees.
HULR: In terms of your big picture understanding of the legal profession, have you noticed any significant evolutions in the legal profession? You've been doing this for a while—you've been around the block. I'm curious as to any sort of changes in any dynamics or legal approaches that you've noticed?
MD: Diversity is a huge issue. For many years, the legal profession wasn't great in that regard, especially when you got to the partner level in large law firm settings. I think that an emphasis on diversity has significantly tilted in employment law especially. Employment law was always an area that was more receptive to women compared to antitrust litigation or something else like that. But that push for diversity has accelerated, and if it's a harassment case or gender discrimination case, most companies want to make sure the lawyer [or] lawyers, that are leading the team and compose the team are composed of diverse individuals by and large. We've seen a greater push for diversity. Obviously, there's still more to do in terms of increasing diversity in the leadership ranks, as well as the partnership ranks, and a race to prove that more companies are demanding as a part of their diversity initiatives that their lawyers and accountants and other service providers also provide diverse teams, not just with junior associates working on matters but relationship partners and lead trial lawyers too. There's a premium on law firms doing better on diversity because it's also not simply the just or moral right thing to do. It's directly connected to whether you're going to get the work or not. So that's been a significant change.
HULR: My last question for you: We're only an undergraduate journal, but you're a Harvard Law School guy. Do you have any reflections on your time at HLS to share? How did HLS impact you as an ascending attorney?
MD: I enjoyed my time there. I had phenomenal faculty. Steve Breyer was my faculty advisor, and I worked on my senior paper with him. You had some really interesting faculty and an excellent student body. Look, I saw that HLS slipped in the recent rankings, but it's all ridiculous anyway, as to what counts and what doesn't count. But HLS was always an important part of my CV. It helps people to get into a firm and it helps with getting into a company; it helps in client relationships down the road, too. I will say, though, that it's more important at the earlier part of your career because, when you're at it as long as I am, people may say, "well, that's nice that you went to HLS, how many ever years ago as a class of ’77, but what's your CV look like lately? What have you accomplished? What are you about? You know, what are your big wins on cases that are important to us? Or what kind of advice have you given? Are you a thought leader?" So, I still think that HLS is important, certainly for those coming out of law school, even though there's more of an emphasis on recruiting [from] more diverse schools of late. For the reasons I said before, there is an emphasis on recruiting rising stars in diverse places and getting some more diverse candidates than you might get out of Harvard. Depending upon what the Supreme Court does with the Harvard admissions case, it could be that student bodies in the future will be less diverse than they are today if schools are not allowed to rely on diversity as a factor.
For me, HLS was a good choice. Just on a personal note, I graduated from Cornell a semester early and I was going to go out to Colorado and be a ski bum and work the ski lifts for that extra semester, but then I tore my knee up playing intramural football so I couldn't do that anymore. I ended up going down to the Wharton School at Penn, where I was a research associate for a well-known professor in labor relations and economics. They made me an offer to stay at Penn and get my MBA and a law degree, JD/MBA, as a free ride, if I continued working for the professor and doing some research. Then, I got into Harvard. And then people were advising me, "look, you know, if you got the invite to Harvard or the acceptance, you want to do that. Don't bypass that." So, you know, I had options. I'm glad I made the choice that I did, although sometimes I think it would have been interesting to get my MBA. We ended up with my son getting his MBA at Wharton, and he's not a lawyer; he's a tech person in data analytics. But that's it. If you're going to go to law school, I think HLS is a great place to go.