Malcolm A. Heinicke

Heinicke is a prominent labor and employment attorney and a Munger Tolles co-managing partner—the first employment lawyer and San Francisco resident elected to the post. His practice focuses on class, collective and PAGA actions; wrongful discharge; and employee mobility matters.

His clients include Wells Fargo & Co., GardaWorld Corp., Fidelity Investments Inc., Plains All American Energy Services, Square Inc., Yelp Inc. and 99 Cents Only Stores LLC.

In early June Heinicke was dealing with getting his firm back to the office—gradually. “We’re looking at re-opening with a very voluntary plan as the state’s regulations develop,” he said. “There will be no pressure. We’ll target a more complete return in September, but all the plans are very much in flux. Lawyers hate to admit they don’t have all the answers about how things will look. We’ll come to a consensus.”

In April, Heinicke as lead attorney for a major candy retailer won an affirmance of class decertification from a state appellate panel in a potential statewide class action over alleged meal and rest period violations. Salazar v. See’s Candy Shops Inc., B300778 (2d DCA, op. filed April 26, 2021).

The panel agreed with a Los Angeles County Superior Court judge that See’s had demonstrated that its meal and rest period policy was fully compliant with California law. The panel also held that the plaintiff’s evidence did not back her claim that in more than 75 percent of worker shifts exceeding ten hours, employees had not recorded a second meal period on their timecards.

Heinicke and his team refuted the claims by undertaking an extensive fact-finding probe to demonstrate that See’s had adopted and complied with state laws. The appellate panel relied in part on a Munger Tolles detailed statistical analysis that contradicted claims advanced by the plaintiff. That evidence “was actually more compelling than the trial court stated,” the panel said. The panel also concluded that reasons why any specific worker eligible for a second meal period did not take one would require an individualized inquiry, making class certification improper.

“It is an honor to represent See’s and its wonderfully principled leadership team,” Heinicke said. “The company values its employees greatly and treats them accordingly, and the Court of Appeal’s ruling confirms not only the validity of the company’s policies but the manner in which they were carried out.”

Heinicke is proceeding with two cases for Wells Fargo.

In a wrongful termination case headed for trial, Heinicke last year obtained a favorable jury verdict in an evidentiary matter over his right to use a recorded phone call that allegedly captures the plaintiff’s misconduct. Schauffler v. Wells Fargo Bank N.A., CGC-19-572560 (S.F. Super. Ct., filed Jan. 4, 2019).

And he secured dismissal of an equal pay claim by a long-tenured executive by reconstructing her entire pay history to show that when all forms of compensation were considered, she earned as much if not more than others. Wright v. Wells Fargo Bank N.A., 4:20-cv-02178 (N.D. Cal., filed March 31, 2020).

“You roll up your sleeves and go through the data,” Heinicke said.

— John Roemer