Philip M Berkowitz

January 08, 2009 | New York Law Journal

Philip M. Berkowitz, a partner at Nixon Peabody, writes: Your corporate client is sued for alleged discrimination by a former employee. In the course of discovery, you identify to your adversary certain current and former employees as witnesses. After determining there are no conflicts of interests between your client and the individuals, and your client is indeed willing to fund your firm's representation of them, you contact them, informing them that they may need to testify, and that, if they wish, your firm will represent their interests at no cost to them. What's wrong with this picture?

By Philip M. Berkowitz

11 minute read

May 12, 2005 | New York Law Journal

Philip M. Berkowitz, a partner at Nixon Peabody, writes that no sexual harassment case has received as much attention in the press recently as the one brought against Fox News and television host Bill O'Reilly by former Fox producer Andrea Mackris.

By Philip M. Berkowitz

7 minute read

May 14, 2009 | New York Law Journal

Philip M. Berkowitz, partner at Nixon Peabody, writes that retaining key employees can be especially difficult at a time when many companies are undergoing restructurings, laying off employees and freezing salaries and benefits. In the current economic climate, he says, employment attorneys must be proactive in advising clients on effective retention strategies and compensation techniques, and the host of legal issues they raise. Companies can't afford to wait until they start losing employees, Mr. Berkowitz cautions, before they start updating their retention programs.

By Philip M. Berkowitz

10 minute read

November 14, 2007 | Law.com

As the end of the year approaches, attorney Philip M. Berkowitz offers a "Top Ten" list (for the Letterman fans), or a "Ten Commandments of Performance Appraisals" (for the fundamentalists) of what to do, and what not to do, when creating these critically important documents. Berkowitz notes that these appraisals can often be the first line of defense (for employers, when prepared well) and offense (for plaintiffs, when prepared poorly) in an employment discrimination lawsuit.

By Philip M. Berkowitz

10 minute read

September 21, 2004 | Law.com

As defense attorneys are only too aware, people continue to think out loud in e-mails. This is so notwithstanding the high-profile discovery debacles represented by cases involving people like Martha Stewart, Frank Quattrone and even Bill Gates. But the case that has had the most influence on e-mail discovery, says attorney Philip M. Berkowitz, is a pending employment case, Zubulake v. UBS Warburg LLC.

By Philip M. Berkowitz

9 minute read

March 15, 2006 | Law.com

Employees have sought to extend SOX's whistleblower protection -- with mixed success -- to mere workplace matters, such as complaints about a company's business decisions, or other complaints unrelated to what Congress sought to remedy in passing SOX. These cases, says attorney Philip M. Berkowitz, are disturbing enough. Now, he says, putative whistleblowers are adding breach of contract claims to their blunderbuss approach when the employee is terminated in violation of an internal "speak up" policy.

By Philip M. Berkowitz

9 minute read

July 12, 2007 | New York Law Journal

Philip M. Berkowitz, a partner at Nixon Peabody, writes that international discovery is not a new phenomenon. Nor is the conflict that exists between the broad U.S. discovery principles, on the one hand, and conflicting laws of foreign countries, on the other. We don't have to look too far, or too far back, to see an example of this conflict in action. Just last month, in a case pending in the Eastern District, Magistrate Judge Matsumoto rendered a decision in a case which highlights this conflict.

By Philip M. Berkowitz

8 minute read

September 13, 2007 | New York Law Journal

Philip M. Berkowitz, a partner at Nixon Peabody, offers his second annual second annual post-summer employment law round-up geared to the practitioner who spent the summer in his or her beach house in Truro, wondering why he or she never finished writing that novel started in college, which by now would undoubtedly have been serialized and turned into a major motion picture.

By Philip M. Berkowitz

9 minute read

November 08, 2007 | New York Law Journal

Philip M. Berkowitz, a partner at Nixon Peabody, discusses what to do, and what not to do, when creating performance reviews - which are often the first line of defense (for employers, when prepared well) and offense (for plaintiffs, when prepared poorly) in an employment discrimination lawsuit.

By Philip M. Berkowitz

10 minute read

November 10, 2005 | New York Law Journal

Philip M. Berkowitz, a partner at Nixon Peabody, writes that the Sarbanes-Oxley Act of 2002 is specifically authorized to order the complainant reinstated at an early investigation stage, even though no evidentiary hearing has been held allowing the company to dispute the whistleblower's allegations.

By Philip M. Berkowitz

8 minute read