Jerrilyn Malana '98, a partner in the San Diego office of Littler Mendelson, a national labor and employment law firm, has represented national Fortune 500 clients and local San Diego businesses in all types of employment-related litigation. Malana also provides counseling and trains employers to prevent employment-related claims. Prior to entering the practice of law, she worked as a human resources professional in both California and Hawaii. Malana serves on the Board of Directors of the San Diego County Bar Association, and is active with several other legal and community organizations.
Res Ipsa: How did you make the transition from your work as a human resources professional to the law?
Malana: When I was working in human resources in Hawaii, I was also enrolled in an MBA program at Chaminade University. As part of the curriculum, I took a course on business law and thoroughly enjoyed the class. I remember that I was required to visit the local courthouse, observe civil proceedings, and meet with a judge to discuss the basics of the legal system. My visit left a strong impression on me, and I fleetingly thought about attending law school. After I received my MBA, I moved back to San Diego and obtained another job in human resources. Nonetheless, the desire to attend law school was still there as I was often in contact with my employer’s outside employment law counsel. I had doubts, however, because I believed I was too old to attend law school and I could not afford the tuition. With the blessing of my former employer, I quit my job to attend law school full-time. I’m glad that I had the courage to do so.
Res Ipsa: When did you make the decision to focus on employment law?
Malana: From the time I began law school, I had the goal of becoming an employment law attorney. I knew that my experience working in human resources had provided me with a good foundation in employment law. I enjoyed my former career, so employment law was a natural choice for me.
Res Ipsa: There has been a consistent increase in employment litigation during the past decade. What are the factors contributing to this trend?
Malana: I believe the increase in employment litigation has been the result of both the federal and state legislatures passing more and more regulations and laws affecting the workplace. Employees are also more aware of their rights in the workplace, which they have gained from a variety of sources, including the training they receive in the workplace, colleagues, friends and family, and, of course, the media. The constantly changing regulatory landscape keeps me and my colleagues busy at the firm. And, that’s especially significant because my firm has nearly 600 attorneys in 41 offices in the U.S. - and all of us practice exclusively in employment and labor law.
Res Ipsa: There has been a consistent increase in employment litigation during the past decade. What are the factors contributing to this trend?
Malana: I believe the increase in employment litigation has been the result of both the federal and state legislatures passing more and more regulations and laws affecting the workplace. Employees are also more aware of their rights in the workplace, which they have gained from a variety of sources, including the training they receive in the workplace, colleagues, friends and family, and, of course, the media. The constantly changing regulatory landscape keeps me and my colleagues busy at the firm. And, that’s especially significant because my firm has nearly 600 attorneys in 41 offices in the U.S. - and all of us practice exclusively in employment and labor law.
Res Ipsa: What are the two employment law issues you handle most often?
Malana: Claims of wrongful termination and discrimination are at the top of my personal list. In these cases, former employees allege they were unlawfully fired from their jobs based on one or more protected categories (e.g., age, race, gender, sexual orientation, disability, etc.) However, I defend employers on these and other types of claims, as my law firm only represents management in employment and labor law matters.
Res Ipsa: As part of your practice, you provide counsel to employers to avoid employment-related claims. When did you start this preventive law approach to employment law and how have employers responded?
Malana: The preventive law aspect is inherent in providing advice and counsel to employers. My colleagues and I regularly assist employers in reviewing their policies and procedures to ensure compliance with applicable laws in areas such as hiring, employee performance, reductions in force, terminations, employee relations, pay practices, leave laws, benefits, etc. We try to identify legal landmines and diffuse them before they turn into lawsuits. Savvy, successful employers know that a "preventive" approach to workplace issues is far better than a "reactive" one - and far less costly.
Res Ipsa: You have written about the complicated issue of dealing with domestic violence. How do you weigh the rights and safety of the individual with the rights of employers in these cases?
Malana: The subject of domestic violence is something that is very important to me as I have a close family member who is a victim. I hope to make a difference in the community by educating employers on the issue. Employers should be aware of the employment laws that are triggered when one of their employees is a victim of domestic violence. Victims of domestic violence face a myriad of challenges, which require significant emotional, physical, and economic healing. By establishing an effective workplace program, an employer can assist with this healing process. That being said, while employee-victims do have protections under various employment laws, an individual’s rights must be tempered with the employer’s right and duty to take steps to keep the work environment safe for others.
Res Ipsa: You serve as co-chair of the National Diversity Council at Littler Mendelson, and you are involved in the Alumni Diversity Coalition at California Western. How would you assess the increased emphasis on the importance of diversity in legal education and the legal profession?
Malana: The increased focus on diversity in legal education and the legal profession is critical - and timely. According to the State Bar of California's Diversity Pipeline Task Force, California is rich with diversity as 53 percent of our population is composed of persons of color. However, it is disheartening to learn that the percentage of attorneys of color in California is only 17 percent. The fabric of our country was built on diversity and it remains the strength of our nation. We can enhance the public’s confidence in the legal system by having the legal community reflect the general population. The Pipeline program, and similar programs, is key to increasing diversity in the legal profession. The goal is to reach out to diverse students at an early age (K-8, high schools, and colleges) and encourage them to pursue a career in the legal profession.
California Western's Alumni Diversity Coalition also serves an important role in increasing diversity in the profession. As alumni, we are all in a position to help diverse law students succeed through mentoring and networking. I encourage all interested alumni to contact Marion Cloete, associate director for diversity services, to join the Alumni Diversity Coalition. We need you! With regard to large law firms, increasing diversity is a hot topic, with successful law firms embracing diversity and making it a core value. Successful firms also recognize the "business case" for diversity in that it fosters employee commitment, motivates employees, helps with retention efforts, attracts the best and the brightest recruits, enhances creativity, and increases revenue. Frankly, I think law firms that can’t or won't manage diversity effectively will become dinosaurs as corporate clients increasingly demand diversity from their outside lawyers. I'm proud of my firm’s commitment to recruit and retain a diverse workforce, and for providing an inclusive environment where ideas are exchanged freely and where they provide the resources, support, and opportunity for all attorneys to succeed.