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Wayne Brazil

Hon. Wayne D. Brazil (Ret.)

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Case Manager
Aimee Hwang
T: 415-774-2607
F: 415-982-5287
Two Embarcadero Center, Suite 1500, San Francisco, CA 94111
ahwang@jamsadr.com

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
  • Recognized as a Top California Neutral "Rising Star," Daily Journal, 2012
  • Recipient of Prestigious D’Alemberte-Raven Award from the Dispute Resolution Section of the ABA, 2009
  • The Mediation Society of Northern California: Annual Award for “Outstanding Contribution in the Field of Alternative Dispute Resolution,” 2007
  • California Dispute Resolution Council: Donald Weckstein Award for “Outstanding Contribution to the Profession of ADR Neutrals,” 2007
  • American College of Civil Trial Mediators (national association headquartered in Florida): award for “Outstanding Achievement in the Advancement of Alternative Dispute Resolution,” 2005
  • "Using Mind Over Matter," ADR Profile, Daily Journal, September 14, 2012
  • D'Alemberte-Raven Award, American Bar Association Secton of Dispute Resolution, 2009
  • Member, American Bar Association Section of Dispute Resolution
  • Law Professor (“Professor from Practice”), Berkeley Law (Boalt Hall), University of California, Berkeley, full-time 2009-2011; part-time 2011-2014
  • United States Magistrate Judge, United States District Court, Northern District of California, June 1984-October 2009
  • Professor of Law, Hastings College of the Law, University of California, San Francisco, California, Courses: Civil Procedure and Civil Rights, 1980-1984
  • Associate Professor of Law, University of Missouri, Columbia, Federal Courts, Civil Procedure, Professional Responsibility, 1978-1980
  • Farella, Braun & Martel, Litigation Associate, San Francisco, California, 1975-1977
  • J.D., University of California, Berkeley Law (formerly Boalt Hall School of Law), Order of the Coif, 1975
  • Ph.D. in American Political and Cultural History, Modern European and American Intellectual History, Harvard University, 1975
  • M.A. in American History, Harvard University, Woodrow Wilson Fellow, 1967
  • B.A., Stanford University, Graduated with Great Distinction, Lloyd W. Dinkelspiel Award, Phi Beta Kappa, 1966

Counsel Comments

    • "Thank you [Judge Brazil] for your excellent work in getting us across the finish line yesterday. We sincerely appreciate all of your efforts getting us to a successful resolution for our clients. Your contributions and efforts were critical to us breaking the previous logjam that we found ourselves in."

      -Energy Technology Litigation Partner
    • “Few people have the range of vision, the attention to detail, the energy for new tasks, the depth of experience, or the passion for the enterprise of dispute resolution that Wayne Brazil so generously shares with the world.”

      – Former Chair of the ABA Section of Dispute Resolution
    • “[Judge Brazil] add[s] the depth and luster of unparalleled experience, and tremendous insight into how the law can and should work to illuminate and resolve disputes….”

      – Named Partner at Premier Firm
    • “I have observed with great pleasure over the years [Judge Brazil’s] tireless work on the bench, the unique and powerful commitment [he] gave to the bench on the record, off the record at settlement conferences, and the zest that [he] breathed into the Northern District ADR program.”

      – Partner at Regional Firm
    • “[Judge Brazil’s] intellectual and analytical thinking, which [he] shared throughout the process, helped us to validate what we saw as the strengths and weaknesses of our case and move us towards settlement. I honestly believe that without [Judge Brazil’s] assistance, the case would not have settled.”
    • “I have the utmost respect for [Judge Brazil’s] skills as a mediator as well as [his] obvious great intellect. [He] was prepared coming into the mediation and while it went on, did a superb job of focusing my side in the right places. The rapport of mutual respect [he] created with both [parties] contributed greatly to being able to get this matter resolved… [His] dogged pursuit of a settlement is one of the major things that allowed us to get over the finish… I really hope I have another opportunity very soon to have [Judge Brazil] involved in another matter.”
    • “I am so appreciative for the gift of the mediation…Two decades of tension dissolved as [Judge Brazil] first touched them and then let them find their way. For the first time everyone became single-mindedly focused on the common purpose. I could not have imagined that what I had worked toward for nearly 3 years would come together in a morning. I am truly grateful.” 
    • “Thank[s] for all of your help in getting me through one of the most difficult years of my life. You have restored my faith in justice.”
    • "As far as mediators go, on a scale of one to ten, [Judge Brazil] is an eleven."

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