Kimberly Klein

Kimberly Klein became a litigation partner at Moses & Singer in 2006. She has litigated and arbitrated a variety of employment matters including, age, race and sex discrimination suits, as well as wrongful termination, contract, defamation and EEOC actions. 

Kim's experience in labor and employment law spans state, federal and administrative agency regulations. She advises clients on federal employment statutes, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), the Older Workers Benefit Protection Act (OWBPA), the Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA), the Fair Labor Standards Act (FLSA), and equivalent state and city statutes.

Kim has experience conducting investigations concerning allegations of discrimination and advising clients on an array of employment matters including: hiring, employment contracts, commission agreements, terminations, severance agreements, reductions-in-force, harassment/discrimination, retaliation, employee discipline, performance reviews, non-compete and other restrictive covenants. She provides guidance on workplace audits, wage and hour issues, employment manuals, training employees, background checks and more.

Prior to law school, Kim received a B.A. from Washington University in St. Louis and a M.A. in Journalism at American University in Washington, D.C., after which she worked as a reporter for several years before going to law school. Kim is admitted to practice in the State Bar of New York and the United States District Courts for the Southern and Eastern Districts of New York.

Before joining the firm, Kim worked at Proskauer Rose LLP.

• Labor, Employment & Employee Benefits
• Equipment Lease Financing
• Litigation
• Privacy & Cybersecurity
• Hospitality, Food Service and Restaurants
• Family Offices

• New York Law School (J.D., magna cum laude)
• American University (M.A. in Journalism and Public Affairs)
• Washington University (B.A.)

• U.S. District Court, Eastern District of New York
• U.S. District Court, Southern District of New York
• New York

Employment Matters

Among the many employment-related litigations and proceedings handled by Ms. Klein, she has successfully:

• Obtained a dismissal of a Charge filed with the U.S. Equal Employment Opportunity Commission (“EEOC”), whereby the claimant alleged he was terminated based on his sexual orientation.  After an investigation, the EEOC found that it could not establish that any employment action by the Company violated federal or state discrimination laws.
• Defeated a motion to dismiss our client’s claims after the defendants terminated our client, a high-level C-suite employee, and refused to pay him under his employment agreement.  In its decision, the Court determined that our client’s incentive compensation was non-discretionary and could constitute earned wages warranting damages under the New York Labor Law.  The Court also ruled that the individual defendant, who is the CEO of the corporate defendant, may be an employer under the New York Labor Law and that the corporate defendant’s failure to pay our client the second half of a promised retention bonus may constitute a breach of good faith and fair dealing.  (Fischkoff v. Iovance Biotherapeutics, Inc. et al, No. 17 Civ. 5041 (AT) (GWG), 2018 BL 240813, 2018 WL 4574890 (S.D.N.Y. July 05, 2018)
• Defeated a motion to dismiss our client's claims after defendants terminated our client (high-level C-suite employee) and refused to pay him in accordance with his employment agreement. Among the court's findings were that the incentive compensation was not discretionary, failure to pay a retention bonus may be a breach of good faith and fair dealing, the individual defendant (the CEO) was an employer under NY Labor Law, and the incentive compensation could be found to be earned wages warranting damages under New York Labor Law. (published decision) (Fischkoff v. Iovance Biotherapeutics, Inc. et al, No. 17 Civ. 5041 (AT) (GWG), 2018 BL 240813 (S.D.N.Y. July 05, 2018)
• Obtained partial dismissal of national origin and sex discrimination claims on a motion to dismiss brought against our client, as well as a ruling finding no individual liability on the part of the Chief Executive Officer and dismissing him from the action. Following the depositions of the individual employee plaintiffs, our client, which leases point-of-sale machines, obtained a favorable (but confidential) settlement. (2018)
• Obtained a Dismissal and Notice of Rights from the EEOC in favor of our client, an importer and exporter of costumes, dismissing complainant's Charge alleging wrongful termination based on age discrimination and retaliation. (2018)
• Successfully represented our client in obtaining dismissal of a complaint brought by a live-in nanny for wrongful eviction and breach of employment contract. (2017)
• Obtained spoliation sanctions, including adverse inferences, preclusion and attorneys' fee, for our client after plaintiff was found to have destroyed text messages, electronic data, her computer, handwritten notes, audio recordings and cell phones. The court further granted our motion to conduct a forensic examination of plaintiff's personal email account. (2017)
• Obtained a court ruling on behalf of our client, an art dealer, seeking discovery of plaintiff in a sexual harassment case concerning plaintiff's prior appearance on a reality television show. The court rejected plaintiff's claim that her appearance on the show was too prejudicial and instead found that her participation on the show was relevant to plaintiff's claim for damages. The court ruled defendants were entitled to depose plaintiff and seek discovery on the issue, including conducting an independent medical examination (IME). (2016)
• Successfully represented our client, a swimwear company, against claims made by a terminated employee for failure to pay a bonus and wrongful termination. The court granted our motion to dismiss the complaint in its entirety, together with costs and disbursements, finding that the bonus was at all times discretionary. (2015)
• Defeated a Temporary Restraining Order brought in Supreme Court, New York County by Red Door Salons, Inc. to prohibit our client from operating a competing salon in violation of a non-compete resulting in a quick settlement. (2013)
• Obtained a determination of No Probable Cause for our client, an equipment lease finance company, against claims of age discrimination before the New York State Division of Human Rights. (2013)
• Defeated claims of race discrimination and retaliation in violation of N.Y. Executive Law brought against our client, an equipment lease finance company, before the New York State Division of Human Rights.  (2013)
• Represented an outsourcing company before the New York State Division of Human Rights against federal and state harassment claims based on race and marital status.  (2012)
• Defended a company that provides tutors to New York City schools before the City of New York, Commission on Human Rights against age discrimination claims by an applicant. (2012)
• Obtained a finding of No Probable Cause for our client, an outsourcing company, against a former employee alleging retaliation in violation of New York State Executive Law before the New York State Division of Human Rights Division. (2012)
• Represented a costume company before the New York State Division of Human Rights against claims of religious discrimination and retaliation by a former employee who was an observant Jew.  Despite receiving a determination of No Probable Cause, plaintiff commenced an action before the U.S. District Court, Eastern District of New York, which was quickly dismissed after oral argument at a pre-motion conference without any motion filed. (2012)
• Defended a private equity investment fund against claims of discrimination based on national origin before the State of Connecticut, Commission on Human Rights and Opportunities (“CHRO”). (2011)
• Brought a motion to dismiss plaintiff’s complaint in Supreme Court, New York County, for alleged improper payment under New York Labor Law and other wage-related claims against our client, a production company that creates content for film, television, the web and mobile devices. (2010-2011)
• Settled a breach of employment agreement brought by our client in U.S. District Court, Southern District of New York for roughly $5 million. (2009)
• Defeated claims of wrongful termination and defamation brought by a former employee/broker against our broker-dealer client in an arbitration before the NASD Dispute Resolution, now FINRA. (2006)
• Defeated claims for race and sex discrimination brought before the CHRO for our client, a technology release management firm. (2006)
• Defeated age and race claims in the U.S. District Court, District of New Jersey against our client a broker-dealer. (2006)

General Litigation

Among the many general litigation matters handled by Ms. Klein, she has successfully:

• Dismissal of complaint alleging theft of trade secrets, breach of a term sheet and equitable relief against our client, a manufacturer and supplier of components to power companies and the U.S. military.  The ruling was affirmed on plaintiff’s motion for reconsideration and by the Appellate Division, First Department in a published decision.  (2008-2009)
• Defended our client, an equipment lease finance company, in an arbitration before the American Arbitration Association, against claims by a competitor of breach of an Asset Purchase Agreement. (2008)
• Obtained a default judgment for our client, a provider of satellite services, for approximately $536,000 after commencing an action in Supreme Court, New York County for breach of contract and account stated. (2007)
• Settled an action brought by our client, a large telecommunications company, in Supreme Court, New York County for roughly the full amount of the claim shortly after commencing the action alleging breach of contract and unjust enrichment. (2009)
• Defeated a summary judgment motion for breach of a loan authorization and fee agreement against our client, a commercial mortgage broker, in the U.S. District Court, District of New Jersey. (2004)

• M&S Attorneys Obtain Dismissal of Sexual Orientation Claim
• M&S Attorneys Defeat Motion To Dismiss Client's Wage-Related Claims
• Moses & Singer Advises Family Offices on Wealth Management and Risk Avoidance
• Moses & Singer's Women's Initiative Group Creates Origami Art for Children of Sandy Hook Elementary School
• Moses & Singer Co-Hosts The 19th HR Seminar With Actus Consulting Group, Inc.
• Moses & Singer Celebrates Its Alumni
• Moses & Singer's Women's Initiative Hosts Female Entrepreneurs

• The Moses & Singer Family Office Forum
• The 19th HR Seminar

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• NYS Makes It Easier for Employees to Bring Harassment Claims
• More Employment Law Changes NY Employers Need to Know
• New Proposed DOL Rule Would Make More Employees Eligible for Overtime
• Employment Laws NY Employers Need to Know in 2019
• Calendar of NYS and NYC Sexual Harassment Dates
• Employers May Require Class Action Waivers in Arbitration Agreements
• NYS and NYC have Passed New Anti-Sexual Harassment Laws Requiring Employers to Make Significant Changes to their Policies and to Implement Training
• Does Your Company Have a Plan In Place If An Employee Complains of Sexual Harassment?
• New York Employers Must Start Providing Paid Family Leave in 2018
• Implementation of New Overtime Rules Delayed
• Recent Employment Laws That New York State and City Employers Need to Know
• Many Exempt Workers Will Now Be Eligible to Receive Overtime As a Result of a New DOL Rule
• Newly-Issued Guidance Helps Define Employers' Obligations to Pregnant Employees in New York City
• Second Circuit Breathes Life Into Unpaid Internships, Applying Primary Beneficiary Test
• DOL: A Worker That Is Economically Dependent On an Employer Is an Employee, Not a Contractor
• NYC Employers May Not Ask Applicants About Criminal History on Applications
• Complaint Against Bank for Failure to Provide Adequate Lactation Space Sustained
• NLRB's Attacks on Employee Handbooks Defy Logic
• NYC Employers Restricted In Running Credit Checks on Applicants
• Indefinite Leave May Be a Reasonable Accommodation for NYC Employers
• Tools of the Trade: Keeping Your Wealth Intact for Multiple Generations
• NYC Employers Required to Reasonably Accommodate Pregnant Employees
• Employers Have More Flexibility to Make Deductions from Employee Paychecks
• NY Federal Courts Uphold Class Action Waivers
• Courts Continue to Reject the NLRB's Notice Posting Rule
• Despite Fee-Splitting Agreements, Employers May Still Have to Pay Arbitration Costs in New York
• Employers: Misclassification of Interns and Other Employees Can Be Costly
• Employers Do Not Have To Display NLRB Posting By April 30
• NLRB Takes Aggressive Action on Social Media Use by Non-Union Workforce
• Private Employers Required to Inform Employees of Their Right to Unionize
• New York Court Adopts Strict Federal E-Discovery Standard
• NLRB: Employees Cannot Waive Right to Class Actions
• NLRB Postpones Employer Posting Requirement at Judge's Request
• Penalties Under the Wage Theft Prevention Act Applied Retroactively
• NLRB Extends Controversial Posting Deadline
• Employee Release of Claims Held Not to Include Discrimination Claim
• Private Employers Now Required to Inform Employees of Their Right to Unionize or Face Possible Unfair Labor Charge
• EEOC to Employers: Don't Focus On Whether An Employee Is Disabled
• Severe Penalties Related to NY's New Wage Law
• Employee Arbitrations May Be Costly To Employers
• New Laws Govern Hiring/Retention of People with Criminal Convictions
• The DOL Makes Available COBRA Model Notices for Employers
• Employers Must Pay a Portion Of COBRA Premiums for Eligible Employees
• Amended Disability Law Makes Employers More Vulnerable to Disablity Claims
• NY Passes Law for Employers Reducing Their Workforce
• Employers Must File Revised EEO-1 Report In September
• Discrimination Against Working Parents Or Caregivers Has Become An EEOC Focus
• New DOL Report Recognizes Employers Frustrations with FMLA, But the Agency Has No Plans to Propose Changes
• Circuit Courts and Agency Split on Enforceability of FMLA Claim Releases
• U.S. E.E.O.C. v. Alamo Rent-A-Car LLC (No. CIV 02-01908-PHX-ROS)
• U.S. E.E.O.C. v. Wal-Mart Stores, Inc. (8.05-CV-00313)
• U.S. E.E.O.C. v. Wal-Mart Stores, Inc. (8.05-CV-01862)
• U.S. E.E.O.C. v. National Education Association (Civil Action No. A01-0225-CV)
• Employers Must Dot Their "i"s And Cross Their "t"s When Performing Background Checks
• Misclassifying An Employee Under the FLSA Can Be Costly For Employers
• Second Circuit Remands For Trial Hostile Environment Claim