Photo by Laura Barisonzi.
As head of Outten & Golden’s employment class action practice, perennial Lawdragon 500 member Adam Klein has successfully challenged employment practices at some of the largest companies in the world, including Wal-Mart, IBM and Verizon. In recent years, the 1990 graduate of Hofstra Law has set his sights on the financial services industry, where he says there are “massive differences in pay between men and women and whites and minorities.” Klein is co-lead plaintiffs’ counsel in a lawsuit against Goldman Sachs over practices that lead to gender pay discrepancies. He also serves as co-lead counsel in the
Lawdragon: Can you explain the legal theory behind the Goldman Sachs gender discrimination case, as well as what might be the potentially groundbreaking effects if successful?
Adam Klein: The Goldman Sachs lawsuit focuses on a number of employment practices that contribute to female employees earning less compensation and receiving fewer promotions than their male counterparts. One of the targeted employment practices is called “forced ranking” – where managers are asked to rank employees from best to worst. Our evaluation of this process shows that female employees receive lower rankings – and therefore receive lower compensation and promotion opportunities. Many other Fortune 500 companies continue to use a forced ranking process as a mainstay of performance evaluation systems – I bet that changes soon.
LD: The firm’s class action team has also been on the cutting edge on litigation on behalf of interns. Will this remain a growing part of your practice? Do you see a momentum developing here and believe these cases can lead to broader changes in terms of how interns are treated?
AK: Our goal is to end the exploitation of unpaid workers. The original statute – the Fair Labor Standards Act of 1937 – was enacted during the height of the Great Depression to provide a minimum safety net for all workers, regardless of the type of work that they performed or their job title. The same holds true today, workers who are branded “interns” should be paid wages for their work. The United States Court of Appeals for the Second Circuit will decide this issue and I expect a sea change as a result of that decision.
LD: What drives you to constantly take on large and powerful defendants on behalf of employees? Where does this motivation come from?
AK: This may seem immodest – I tend to rush in where others see unmanageable risk. I repeatedly thank my partners for allowing me to take on cases that most other firms would reject – it really is a testament to the integrity of Outten & Golden. We take action – even in the face of hardship and long odds – when the merits demand it.
LD: You have an undergraduate degree from Cornell University’s School of Industrial and Labor Relations. Is this the reason why you have focused on employment class action litigation?
AK: Historically, the ILR School’s primary focus was on traditional labor interests both from the union and management perspectives. In the mid-1980’s, the ILR School didn’t consider individual worker rights to be part of that mandate, largely because statutory rights for individual workers were extremely limited. Within a year of graduating from law school, however, three major civil-rights statutes were enacted into law that radically changed the U.S. workplace – the Americans with Disabilities Act of 1990, the Civil Rights Act of 1991 and Family and Medical Leave Act of 1992. In combination, these three new employee-rights statutes led to the creation of a plaintiff-side employment bar and the advent of employment class action litigation. It was a natural fit to apply my ILR training to this new field.
LD: What do you consider the most challenging aspect of your practice right now?
AK: No question that ESI – electronically-stored information – discovery is the single biggest challenge in the legal profession today. We are literally overwhelmed with information – every email, every electronic document and database is potentially discoverable. We are now faced with artificial intelligence search capabilities and the need to understand and utilize advanced search technologies that look more like the NSA than what lawyers only 20 years ago could imagine. I tell law students that they should skip their third-year law courses and take computer programming instead. The legal profession is about five steps behind the technology.
LD: You are currently handling an employment class action suit against the federal Census Bureau. What makes this case unique from other major cases you’ve handled in the past?
AK: First, the size. The putative class is estimated to be around 400,000 people. Since the Supreme Court decision in Dukes v. Wal-Mart, courts have expressed added concern about the size of a class action in terms of its viability and manageability. The other unique aspect of this case relates to suing the federal government. In every other employee-rights class action that I’ve handled, we have considered the federal government to be supportive of our interests. For example, the United States Department of Labor recently filed a helpful amicus brief at the 2nd Circuit in a lawsuit against Gristede’s. Here, the federal government is the defendant and no other federal agency may participate in this case for any reason.
LD: What is the most valuable lesson you’ve learned that has aided you in your practice?
AK: Trust your instincts, but never worry about changing your mind when faced with new information. Also, managing talent is a critical skill within a law firm. The lawyers and other employees within our firm are critically important to our success – it is an undervalued asset.
LD: Does handling massive employment class action cases make you cynical about U.S. workplace conditions? How have things changed or stayed the same in this area of law?
AK: We are making progress. I remember the days before Anita Hill and the idea that workplace harassment was unlawful. I remember growing up in a racially segregated community in Riverhead, N.Y., and not thinking twice about the plight of people who lived on the wrong side of Main Street. There are still many challenges in terms of racial and gender equality in the workplace, but we have made real progress.
LD: Is there an industry or sector that you think still has a particularly long way to go in terms of leveling the playing field?
AK: Several. The number of racial minorities working in professional positions within the financial services industry is miserably low. We continue to see massive differences in pay between men and women and whites and minorities. I was recently told by a management-side attorney that women are paid less than men in the financial services industry – but we can’t pursue a legal remedy unless we are able to isolate a particular employment practice that is causally related to the compensation disparities. It’s an interesting dynamic.
LD: What was your favorite subject in law school?
AK: My favorite subject was my job working as an investigator with the New York Attorney General’s office. I would periodically go undercover in a sting operation – I miss those days.
LD: Did you have a mentor when you first started out as a lawyer? If so, how did you cultivate that relationship?
AK: I’ve had a few people who mentored me as a young lawyer. My first boss, Malcolm Davis, was a positive influence. Rick Seymour was another; he was and still is indefatigable.
LD: Is there a class you wished you took in law school or you think should be offered by law schools that would have helped you launch your legal career faster or made legal practice easier during those early years?
AK: Practical experience would have been a big help in law school. The practice of law and law school are ships passing in the night; we aren’t doing a very good job matching the needs of the legal profession with the skills taught at American law schools.
LD: What do you do to unwind?
AK: I’ve been watching a lot of high school wrestling these days. My son just took third in Sectionals and is aiming his sights on a New York State title next year.