Some people are guided by a moral compass; San Francisco employment attorney Cliff Palefsky has a moral GPS
Published in 2008 Northern California Super Lawyers magazine
on June 15, 2008
Updated on June 11, 2009
Cliff Palefsky’s San Francisco office resides in a sturdy brick building that withstood the Great Quake of 1906. The four-story structure in the Jackson Square neighborhood will surely outlast the trendy furniture shops and ultra-hip coffeehouses that currently surround it. The building’s durability is a testament to the craftsmanship of the American worker, which is appropriate because the American worker has no stronger ally than Palefsky.
Labor leaders of the past were combative types who threw figurative punches at the negotiating table and actual punches on the picket line. Palefsky’s style is much less pugilistic. He has the genial familiarity of every undergrad’s favorite instructor on a big college campus. He certainly looks like a professor with his inquisitive eyes and penchant for wearing jeans at the office. He swears that he owns a tie, but it doesn’t often see the light of day. But what separates Palefsky from most plaintiff’s attorneys is not his ability to teach but his need to preach.
A guest to his office can barely step in the door before Palefsky launches into a sermon on the evils of mandatory arbitration and its infringement on the rights of employees. He’s not espousing any particular religion and he’s not out to save your soul—unless your soul has been wrongfully terminated—but Palefsky preaches about justice because he believes in it. He will take a case only if he has faith in its ability to achieve some societal benefit. This is the only way he knows how to work, and he claims it’s what makes him an effective litigator.
“As a lawyer, it’s really an unfair advantage to believe in what you’re saying,” he says.
There probably aren’t many preachers who were raised in working-class families in the Bensonhurst neighborhood of Brooklyn, but Palefsky still maintains much of the ethos of his upbringing. He comes from a borough famous for rooting for the underdog, and there’s still some Brooklyn in the way he practices law. As a kid, he fed himself a steady diet of Agatha Christie novels and episodes of Perry Mason, which guided him toward the law, although he confesses to a lack of choices: “I don’t remember wanting to be anything but a lawyer,” he says.
He graduated from the State University of New York at Buffalo, then enrolled in law school at Georgetown, where he took a criminal justice law clinic. Upon graduation in 1977, he headed to California, where he joined a boutique firm with John McGuinn and John Hillsman. His move coincided with the seminal case of Tameny v. Atlantic Richfield. The decision in Tameny helped establish the tort of wrongful termination. Watching Hillsman argue as an amicus for the plaintiff before the California Supreme Court, Palefsky discovered a whole new area of law where he could have an immediate and tangible impact on people’s lives by protecting their jobs.
Palefsky first achieved national prominence with Rulon-Miller v. IBM in 1981. The wrongful termination case involved an IBM employee who was fired for continuing a romantic relationship with a former employee who now worked for a competitor. The case’s renown stemmed from the fact that IBM had never lost an employment law jury trial—it was the New England Patriots of corporate litigation. But Palefsky and his firm played the role of the New York Giants, winning an award with punitive damages from a jury. Palefsky takes pride in how the case established a precedent of privacy in the workplace. Employers could no longer intrude into their employees’ lives away from the job.
In an effort to broaden the scope of employment law, Palefsky helped found the influential National Employment Lawyers Association (NELA) in 1985 to train lawyers in the field of employment law and help create tough legislation to protect workers throughout the country. Palefsky calls the initial meetings of NELA the “just cause conspiracy.” In his view, it was a cabal of socially conscious attorneys trying to do the right thing. He was on the organization’s board for several years, but as the group gained size and strength, his interest waned. He still co-chairs two pertinent committees but seems to miss the days of its grassroots beginning. “I want to empower the people,” he says. “I don’t want to be one of the people in power.”
Palefsky continued to concentrate on privacy issues throughout the ’80s—most notably, against mandatory drug testing. In the last 20 years, he has found a new nefarious practice to rail against: mandatory arbitration. He speaks with such passion about it that it feels as if there should be a pulpit nearby. “I can’t sit by and watch companies say, ‘We don’t like the civil rights laws,'” he says. “We just opted out of the civil justice system. You lose the right to a trial, to discovery, to punitive damages. You lose the rights Congress has given us.”
He spends as much time helping to write strong legislation at the state and federal levels as he does handling mandatory arbitration cases. Helping draft viable employment laws is just another tool for him to fight corporate injustice. He doesn’t get paid for it, but he still views it as part of his job. Michael Rubin of Altshuler Berzon has known Palefsky since their days at Georgetown Law. “Palefsky has always been passionate about justice,” Rubin says, “and has been willing to take on fights that nobody else thought were winnable, or economically profitable to pursue, because he believed in doing what was right.”
Palefsky is passionate about fighting for his clients, but he’s remarkably polite. “While he has a strong sense of right and wrong,” Rubin says, “he never lets ideology color his relationships, and he has more close relationships with opposing counsel than any advocate I’ve ever known.”
Palefsky says it’s the best way to do business. Top employment attorneys representing both sides frequently cross paths, so any hard feelings over a claim can affect future cases. Fred Alvarez, partner at Wilson, Sonsini, Goodrich & Rosati in Palo Alto, has faced Palefsky dozens of times. “Our relationship is based on mutual respect, so while we argue like cats and dogs, it never gets uncivil,” Alvarez says.
Being a nice guy is part of Palefsky’s effort to be “a good citizen of the world.” For the last several years, he has been a board member of The Rex Foundation, which funds small grassroots organizations and was started by members of The Grateful Dead. The group doles out grants and other funds to deserving entities that have fallen through the cracks of other fundraising mechanisms. Similarly, Project Avary is an organization that assists kids who have at least one parent incarcerated. Its aim is to break the cycle of violence among the underprivileged. It’s an innovative program, and Palefsky has been its board president since its inception in 1999.
As proud as he is of his charitable efforts, don’t expect to hear him trumpet it. For someone who is often quoted in the press regarding employment issues, he tries to keep a low profile. The firm of McGuinn, Hillsman & Palefsky does not have a publicist. It doesn’t send out press releases nor does it advertise. The firm almost has a Web site, though. It’s been nearly complete for years. It seems to be in limbo waiting for Palefsky to finish his bio. “I really don’t know what to write for it,” he says.
It seems appropriate that the man who has fought so hard to protect the right of privacy is private in his own right. Palefsky lives in the city with his pediatrician wife and their two children. Asked about hobbies, he wonders out loud, “Hobbies? I don’t know … is thinking a hobby?” The reluctance to talk about himself is not an evasive maneuver from a guy with something to hide, but he just seems to find something more important to talk about.
Has he told you about his feelings on mandatory arbitration yet?
In 2007, Palefsky was named one of “The Top Ten Plaintiff’s Attorneys to Fear” by Human Resource Executive Online. It’s difficult to envision this friendly man evoking such terror, considering his favorite piece of advice for HR executives: “Treat employees like human beings.”
This is the heart of the matter for Palefsky. He would love to see the workplace humanized. For all the lofty aspirations of ridding the world of injustice and fighting for what’s right, employment law comes down to people. When an employee is fired, it is never just about the loss of income or a simple monetary calculation. “Some of my best cases have resulted in simple apologies,” he says.
This humanistic approach may be rare, but Palefsky will work hard to see it spread. He feels he has the greatest job in the world. He enjoys his work so much that he will fight to protect everyone’s right to have a job they find just as rewarding.
Teresa McLoughlin has been with Palefsky’s firm for five years. She laughs when asked how the Great Protector of Workers’ Rights treats the people who work for him. She responds without reservation. “He’s a very good boss.”
Of course he is. Palefsky practices what he preaches.