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David Barmak

Member / Chair Emeritus, Employment, Labor & Benefits Practice

DBarmak@mintz.com

+1.202.585.3507

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David is an experienced trial lawyer and trusted advisor to businesses and their executives with a focus on employment law and HR issues. He has litigated hundreds of cases in federal and state courts and arbitrations nationwide. David is devoted to helping clients accomplish their compliance, risk reduction, and employee relations objectives. 

As a trial lawyer, David has handled hundreds of cases covering issues such as employment discrimination, whistleblower and other retaliation, noncompetition agreements and trade secret issues, wage and hour (FLSA) compliance, class and collective actions, and employment contract disputes. Clients have also regularly looked to David to litigate disputes involving a broad range of non-employment issues, including contract, partnership, shareholder, technology, and outsourcing.

As a trusted advisor, David has helped clients across a broad array of industries to reduce employment practices risks, and adopt best practices relating to wage and hour laws, employee leave laws, internal investigations, dispute resolution policies and practices, non-compete and trade secret issues, employee training, personnel and other policies, and WARN Act issues and other matters. He also is frequently involved in the negotiation and drafting of executive employment, separation, and related agreements.

David's clients include publicly and privately held companies, non-profits and trade associations, and their executives in a broad range of industries, including:

  • Health care and life sciences
  • Financial-services
  • Defense and security
  • Telecom
  • Hospitality, including hotels and restaurants
  • Technology
  • Government Contracting
  • Staffing and outsourcing
  • Consulting and professional services
  • Professional sports

David chaired the firm’s Employment, Labor & Benefits Practice for more than a decade. He has been recognized as a leading lawyer by several publications including Chambers USA, a leading legal research guide, in which clients interviewed had these comments about David: “a superior lawyer who is very knowledgeable and attentive” and "unbelievably responsive and timely...His advice is very, very well informed but also highly tuned to the needs of the business". In addition, Super Lawyers has identified David as one of the District of Columbia's "Top 100" lawyers. 

David also has frequently written, lectured, and been quoted on issues such as class action risk mitigation, use of arbitration agreements and class action waivers, post-employment breaches of fiduciary duties, employee versus independent contractor status, employment discrimination, alternative dispute resolution, trial practice, and budgeting for litigation. He is also co-editor of Mintz’s Employment Matters blog.

Education

  • Georgetown University (JD)
  • State University of New York - Buffalo (BA)

Experience

Employment-Related Litigation & Counseling

  • Prevailed at trial on behalf of a federal government contractor accused of defaming an employee, adversely impacting the employee's security clearance.
  • Obtained summary judgment in favor of "fast casual" restaurant group on retaliation claim, which was upheld in U.S. Court of Appeals.
  • Conducted for a client's Board of Directors an internal investigation of an executive's alleged sexual harassment of various employees.
  • Successfully defended an FLSA (Fair Labor Standards Act) collective action in which, among other things, we were able to limit the number of opt-ins to only approximately 8% against typical rates of 15% - 30%.
  • Obtained an order compelling arbitration of individual wage claims and dismissing class action claims against a government contractor.
  • Represented a Fortune 500 company in successfully resolving without liability retaliation and whistleblowing allegations under the False Claims Act and state law.
  • Represented a financial services firm in the successful resolution of trade secret claims against a former employee.
  • Represented a laboratory in pursuit of five former employees who became employed by a competitor on trade secret misappropriation, breach of fiduciary duty, use of confidential information to solicit our client's customers and other claims.
  • Successfully defended a manufacturer against retaliation and whistleblower claims under the Food Safety Modernization Act (FSMA) and the Occupational Safety and health Act (OSHA), resulting in a dismissal of the claims and a finding of no liability.
  • Developed executive employment agreements for the senior executives of a major New England hospital system and affiliated entities.
  • Represented a national, publicly traded clinical laboratory company, in defense of a federal court lawsuit filed by an ex-employee who alleges retaliation in violation of the Family and Medical Leave Act (FMLA), and wrongful discharge.
  • Won arbitration for healthcare company executive enforcing his severance agreement and defeating claims he violated his non-compete.

Complex Business Litigation

  • Representing purchasers of interests in tobacco escrow accounts relating to the allocation of responsibility for qualified settlement fund taxes
  • Successfully defended a title company against Freddie Mac's attempt to add them to the list of excluded providers.
  • Assisted a restaurant group (an LLC) in ousting a non-performing member.
  • Successfully represented former shareholders in a suit to obtain disbursement to them of the balance of a contingent purchase price due under the terms of a stock purchase agreement.
  • Won a defense verdict in a federal court jury trial for our client, a healthcare company, sued for millions of dollars in claimed commission dispute.

Recognition & Awards

  • Best Lawyers in America: Litigation - Labor and Employment (2021)
  • Chambers USA: District of Columbia – Labor & Employment (2014 – 2020)
  • Included in the Top 100 List of the Washington, D.C. Super Layers (2020)
  • Included on the Washington, D.C. Super Lawyers: Employment & Labor, Employment Litigation: Defense, Business Litigation, Alternative Dispute Resolution List (2007, 2010 – 2020)
  • Previously included on the Virginia Super Lawyers: Employment & Labor, Business Litigation, Alternative Dispute Resolution List
  • Martindale-Hubbell AV Preeminent
  • Member, Editorial Advisory Board, Employment Law 360 (2013 and 2014)

Involvement

  • Senior Fellow, Litigation Counsel of America, The Trial Lawyer Honorary Society
  • Chair, American Academy of Alternative Dispute Resolution
  • Certified mediator, Institute for Conflict Management
  • Pro bono mediator, Civil Division of the Superior Court of the District of Columbia
  • Past Master of the Bench, William B. Bryant American Inn of Court, Washington, DC
  • Past faculty member, National Institute of Trial Advocacy, Georgetown University Law Center
  • Member, American Health Lawyers Association
  • Member, American Bar Association (ABA)
  • Member, ABA Litigation Section
  • Member, ABA Labor and Employment Law Section

Recent Insights

News & Press

Viewpoints

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OSHA Updates COVID-19 Recordkeeping Guidance

June 3, 2020 | Blog | By David Barmak

On May 19, 2020, the Occupational Safety and Health Administration ("OSHA") issued new interim guidance on recordkeeping for COVID-19 cases in the workplace.  Effective May 26, 2020, this guidance supersedes the April 10, 2020 guidance and supplements OSHA's March COVID-19 guidance on safeguarding the workplace against virus-related threats. We examine OSHA’s recommendations on both fronts in this post.
Read more
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In Part Seven of our Roadmap Series, we take a closer look at the impact of COVID-19 on employee mental and physical well-being, and what employers can do to assist their workforce.
Read more
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COVID-19 Update: The Families First Coronavirus Response Act Becomes Law

March 19, 2020 | Blog | By Michael Arnold, David Barmak, Danielle Bereznay

President Trump signed the Families First Coronavirus Response Act into law late Wednesday night.  We summarize the enacted version below (which replaces our analysis of an earlier version the House passed, which it since amended).  The law goes into effect into effect April 2, 2020 and will remain in place until the end of the year. 
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The D.C. council is considering legislation that would prohibit the use of non-compete provisions for entry level and moderate-income employees, and would apply to D.C. workers that earn up to three times the minimum wage, currently equal to $87,654 annually.   
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Calculating overtime pay for tipped employees working in multiple positions at different rates in a single workweek can be confusing. So confusing, in fact, that we discovered that even the District of Columbia’s Department of Employment Services (“DOES”) was getting it wrong in guidance published on its website. Before reviewing what DOES did wrong, let’s briefly review the key principles to keep in mind when calculating overtime pay for tipped and non-tipped employees in Washington, D.C.
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The Department of Labor (DOL) has issued a Notice of Proposed Rulemaking (NPRM) that it estimates would convert more than one million now overtime-exempt workers to non-exempt, overtime-eligible employees.  Currently, the so-called “white collar” exemptions under the Fair Labor Standards Act (FLSA) provide that employees who are paid a salary of at least $455 per week ($23,660 per year) and primarily perform executive, administrative, or professional duties (the “job duties test”) need not be paid overtime. The NPRM would change this, by increasing the salary threshold. If adopted, the proposed rule would make other changes, too.

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In the case of DiFiore v. CSL Behring, LLC, the Third Circuit ruled for the first time that the more demanding “but for” causation standard applies to retaliation claims under the False Claims Act (“FCA”), rejecting the lower “motivating factor” (also commonly known as the “mixed-motive”) standard.
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A recent Fourth Circuit ruling in a case handled by Mintz Levin provides some comfort to employers concerned about terminating an employee who they believe has made a false complaint of discrimination.
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As we discussed yesterday at Mintz Levin's Third Annual Employment Law Summit, big changes are likely in the offing as all three branches of our federal government begin to deal with labor and employment issues following President Trump’s election.
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2016 DC Metro Area Employment Law Year In Review

March 1, 2017 | Blog | By David Barmak

Today we continue with our Year in Review segment, which looks at the key labor & employment law developments from 2016 in New York, the DC Metro Area, Massachusetts, and California, while offering our thoughts about 2017.  Today we turn to the DC Metro Area.
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News & Press

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Law360 reported that a Mintz litigation team won a Motion to Stay on behalf of its client, software provider Citrix, in a putative class action case alleging that the company conducted illegal telemarketing calls. The decision will put the case on hold to await the U.S. Supreme Court’s decision in Barr v. American Association of Political Consultants Inc., in which oral arguments are scheduled to take place remotely on May 6.
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Mintz partner and Massachusetts lawyer Julie Korostoff is one of 49 attorneys recognized as “Leaders in Their Fields” by the 2018 Chambers USA: America's Leading Lawyers for Business guide. Chambers named Korostoff a “Recognized Practitioner” in Technology.
Mintz is pleased to announce that eight attorneys have been named Washington, D.C. Super Lawyers for 2018 and three others have been named Washington, D.C. Rising Stars. The annual publication identifies lawyers who have attained a high degree of peer recognition and professional achievement.
Eight Mintz attorneys have been named Washington, D.C. Super Lawyers for 2017 and four have been named Washington, D.C. Rising Stars. The list will be published in a special advertising supplement in The Washington Post Magazine and in a stand-alone magazine, Washington D.C. Super Lawyers Magazine.
Mintz attorneys represented Seventh Generation, Inc. in its recent sale to Unilever. Based in Vermont, Seventh Generation is a pioneer in corporate responsibility and sustainable product innovations, including plant-based detergents and household cleaners.
Mintz has bolstered its Employment, Labor & Benefits Practice with the addition of Kate Beattie, who returns to the firm from global IT services company NTT DATA, Inc. Ms. Beattie served as a Mintz Associate from 2006-2013 and re-joins as a Member in the Boston office.
Firm’s National Healthcare Practice, NY Corporate/M&A and Litigation: General Commercial Among Newest Rankings
Mintz Employment, Labor & Benefits Member David Barmak is quoted in this Marketplace article on the Department of Labor’s final rule regarding white collar worker eligibility for overtime pay.
David Barmak is quoted in this Society for Human Resource Management discussing whether the Equal Employment Opportunity Commission should be held accountable for the $4.7 million legal bill resulting from its bringing a sexual harassment case against a trucking company, CRST Van Expedited Inc.
Mintz Employment, Labor & Benefits Member David Barmak is quoted in this Society for Human Resource Management article on how human resources departments can go about selecting the right employment law representation for their company.  
The 2015 Chambers USA: America's Leading Lawyers for Business guide names 52 Mintz, Cohn, Ferris, Glovsky and Popeo, P.C.  attorneys as “Leaders in Their Fields.”
Seven Mintz attorneys have been named Washington, D.C. Super Lawyers for 2015 and five have been named Washington, D.C. Rising Stars. The list will be published in a special advertising supplement in Washington Post Magazine and in a stand-alone Washington D.C. Super Lawyers Magazine.

Events

Speaker
Speaker
Apr
30
2019
Speaker
Dec
2
2015

27th Annual Nonprofit Finance & Accounting Symposium

GWSCPA

DC Convention Center 801 Mt Vernon Pl NW, Washington, DC 20001

Speaker
Apr
29
2015

Spring Membership Meeting DC's Wage Theft Prevention Act

Greater Washington Society of Certified Public Accountants

Greater Washington Society of CPAs - Conference Facilities 2000 M Street, NW, Level B Washington, DC 20036