Employment
Employment matters were among the most frequent over which Judge Brazil presided during his 25-year tenure as a magistrate judge in the United States District Court for the Northern District of California. Judge Brazil acquired expertise in a wide range of employment matters.
Judge Brazil presided at trial or settled cases sounding in wrongful termination in violation of public policy, breach of employment contract, discrimination or harassment based on race, gender, religion, age, or disability, retaliation for exercise of work-place rights or constitutional entitlements, and invasion of rights protected by collective bargaining agreements. Judge Brazil also handled numerous cases involving alleged violations of ERISA, class actions challenging classifications of employees, as well as wage, hour, and benefits claims. In addition, he has worked on cases arising under the National Labor Relations Act (NLRA) and the Fair Labor Standards Act (FLSA).
The issues Judge Brazil addressed arose in a huge range of settings: large corporations, governmental entities, and small businesses. Since joining JAMS, Judge Brazil has mediated or arbitrated cases involving alleged sexual harassment, wrongful termination, retaliation, breach of a high-visibility performer’s employment contract, failure to pay vacation benefits, and breach of promise to pay substantial severance benefits if duties were reduced after sale of a company.
Working as a settlement judge and mediator, Judge Brazil has been especially successful in earning the trust and confidence of all parties in reaching settlement.
Representative Matters
Wage and Hour
- Arbitrated employment compensation and reimbursement claims.
- Mediated several meal, rest break, and under compensation cases.
- Individual and class action wage and hour claims, including the alleged misclassification of employees as exempt or independent contractors, failure to compensate for overtime including off the clock work, failure to provide meal and rest periods, failure to distribute tips and service charges, failure to compensate for travel time, claims for reimbursement of work related expenses, pay stub violations, minimum wage violations, failure to pay vacation benefits.
- Mediated matter involving violation by direct employer and large retailer of meal and rest break rights of janitorial workers.
ERISA
- Cases involving alleged violations of ERISA including claims of misappropriation of plan assets, breach of fiduciary duty related to improper valuation and mismanagement of trust fund assets, denial of long-term disability benefits and wages, failures to contribute to retirement, health and welfare funds, and retaliation for exercising rights under ERISA.
Contract
- Mediated employment contract dispute between prominent talk show host and national radio network.
Discrimination
- Claims of discrimination or harassment based on race, gender, religion, age, disability, medical condition, sexual origin, national origin.
- Claims of retaliation for filing discrimination action, participating in an investigation, or opposing discriminatory practice.
- Family and Medical Leave Act (FMLA) discrimination cases, involving termination of employees on leave, and the failure to reinstate employees following the end of leaves.
Sexual Harassment
- Claims for hostile work environment, unwelcome sexual advances, quid pro quo harassment.
Wrongful Termination
- Claims of wrongful termination in violation of public policy including whistleblower cases, retaliation resulting in wrongful termination, failure to accommodate disability.
- Mediated wrongful termination claim by co-founder of international provider of IT support.
- Mediated wrongful termination claim by senior executive in violation of public policy (refusal to bribe foreign government).
Labor
- Mediated health care plan dispute between union and major health care provider.
- Disputes between employer and union regarding protection of right to solicit, and breach of liability for exceeding that right.
Books, Articles, and Chapters in Treatises
- Shaking Decision Trees for Risks and Rewards (with Majorie Aaron), 22 ABA Dispute Resolution Magazine 12, Fall 2015
- Early Neutral Evaluation: A Guide For Neutrals, Advocates, and ADR Program Designers, Dispute Resolution Section, ABA, forthcoming
- Effective Approaches to Settlement: A Handbook for Lawyers and Judges, published by Prentice Hall Law and Business, 1988
- Settling Civil Suits: Litigators' Views About Appropriate Roles and Effective Techniques for Federal Judges, ABA Press, 1985
- Managing Complex Litigation: A Practical Guide to the Use of Special Masters (with Geoffrey C. Hazard and Paul R. Rice), American Bar Foundation, 1983
- Thoughts About Impasse for Mediators in Court Programs, 15 Disp. Res. Mag. 11, Winter 2009
- ENE or Mediation? When Might ENE Deliver More Value? 14 Disp. Res. Mag. 10, Fall 2007
Hosting Mediations as a Representative of the System of Civil Justice, 22 Ohio State J. Disp. Res. 227, Winter 2007
- Professionalism and Misguided Negotiating in The Negotiator’s Fieldbook; The Desk Reference for the Experienced Negotiator, ed. by Andrea Kupfer Schneider and Christopher Honeyman, ABA, 2006
