Kathy H. Gao

LOS ANGELES - The first job offered to Kathy H. Gao after law school was in employment law and it set her career's course. She's now a partner at Morgan, Lewis & Bockius LLP, where she litigates single plaintiff and class action accessibility matters, wage and hour counseling and cases and employment benefits claims. She is a coleader of Morgan Lewis' Asian American/Asian Lawyer Network.

"I stumbled into employment law and ended up loving it," she said. "It's such a relatable field. Everybody works and we all know people with employment problems."

Gao co-leads a team that was retained by Tesla, Inc. to manage a portfolio of dozens of Private Attorneys General Act matters. In one of them, she successfully demurred to the plaintiff's representative PAGA claim regarding alleged Labor Code violations over rest periods, meal breaks and wage and hour issues. Vela v. Tesla Inc. 21STCV41351 (L.A. Super. Ct., filed Nov. 9, 2021).

"We investigated the dates of employment and realized there were time-barred components to the complaint," Gao said. The plaintiff had failed to timely exhaust his mandatory prefiling administrative requirements and failed to timely file his complaint within the statute of limitations. Despite contrary arguments about equitable tolling and other matters, the court agreed that dismissal without leave to amend was required.

"It was a fairly straightforward argument. Not all judges are familiar with PAGA's nuanced timing and administrative tolling requirements, but our judge got it," Gao said.

On an issue of first impression over the status of gift cards, Gao co-led the successful defense of a major retail company. A visually impaired customer alleged that the company violated the Americans with Disabilities Act and California's Unruh Civil Rights Act by failing to offer gift cards in Braille. The case turned on the question of whether a gift card is a service offered by a place of public accommodation, requiring accessibility.

"I partnered with our ADA team to represent a consortium of national retailers with similar claims," Gao said. "It was the first time that this theory of liability has been advanced."

Gao and the team persuaded the court that a gift card is a good, not a service, and that the ADA does not require a public accommodation to provide specialized goods such as a Braille card. The court also agreed that the plaintiff failed to plead sufficient facts to establish standing--and dismissed the case without leave to amend.

In another ADA case, Gao secured summary judgment in favor of her client, an auto body shop, by demonstrating that the establishment has no customer parking and therefore was not required to provide an accessible parking area. Hernandez v. Caliber Bodyworks LLC, 3:21-cv-05836 (N.D. Cal., filed July 29, 2021).

"The plaintiff bar is going gangbusters with serial litigants in this space due to the statutory damages component under California law," Gao said.