Malcolm A. Heinicke

In 2019, Heinicke was elected co-managing partner of Munger, Tolles & Olson -- the first employment lawyer and first San Francisco resident to hold the post. The appointment put him in charge, alongside Hailyn J. Chen in Los Angeles, when the coronavirus pandemic arrived.

"I signed up for unspecified challenges, and that's what I got," Heinicke said. "We've told folks there will be no mandated return to the offices before Labor Day, and that may slip, depending on how things develop."

Heinicke has been heavily involved in litigation over meal and rest break rules for armored car drivers, persuading courts that an exception should apply from the rule established by the state Supreme Court in its 2016 Augustus opinion that rest periods must be free from duties and employer control.

"Driver messengers are always in harm's way. They are always a target for robbery or hostage-taking," he said. "If drivers take duty-free breaks and are not alert and the bad guys know it, the guards and the public are at risk."

In 2019, Heinicke obtained a ruling that armored car driver messengers' rest period claims were preempted by federal law. A trial court granted judgment on the pleadings, finding that U.S. Department of Transportation regulations and an administrative pronouncement prevent California from enforcing Augusta in this context. The outcome created a precedent allowing armored car companies to maintain employee safety in the field. In re Garda Wage and Hour Cases, JCCP 4828 (L.A. Super. Ct., filed June 1, 2015).

Heinicke then used that outcome in a Washington state case. There, the Garda private security firm, then represented by other counsel, had suffered an adverse class action verdict and lost appeals that ran all the way to the Washington Supreme Court. Newly retained by Garda to pursue the matter, Heinicke argued that the preemption decision in California would eventually apply to Washington employees, even though no such determination had been made. In response, the Washington plaintiffs agreed in February 2020 to settle for less than the judgment amount. Hill v. Garda CL Northwest Inc., 09-2-07360 (King Co., Wash., filed Feb. 10, 2009).

"It was sort of a creative argument," Heinicke said, "but I made them see it. It was an example of using a series of wins in California to save an industry practice and then extending it elsewhere."

In a wrongful termination case by a high-level bank employee, Heinicke won a two-week trial in whick the jury took just one hour to return a defense verdict. Schauffler v. Wells Fargo Bank NA, CGC-19-572560 (S.F. Super. Ct., filed Jan. 4, 2019).

"My favorite part was that two young colleagues played key roles," Heinicke said, naming Dane P. Shikman and Caroline C. Litten. "Carrie was so fresh she had just passed the exam and didn't have a bar number yet, but the court allowed her to appear and she made strong arguments."

-- John Roemer