Kimberly Klein

Partner

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T(212) 554-7853

F(917) 206-4353

Kimberly Klein is a partner and Co-Chair of the firm's Labor, Employment and Employee Benefits practice.  She has extensive experience representing management, as well as high net worth individuals, in employment litigation matters before state and federal courts, as well as federal and state agencies, including the Equal Employment Opportunity Commission, New York State Division of Human Rights, New York City Human Rights Commission, arbitral forums, and others.  In this role, Kimberly has wide-ranging experience litigating discrimination and harassment cases (including sex, age, disability, national origin, equal pay, religion, race, sexual orientation); retaliation; restrictive covenants (non-competes, non-solicitation and non-disclosure); wrongful termination; leave laws; wage and hour claims; wrongful discharge; defamation and other torts; and complex contract claims, including breach of employment and commission agreements.  She also has argued appeals before state appellate courts.

Kimberly regularly advises and counsels employers of all sizes on a wide range of employment issues, including internal discrimination/harassment complaints and investigations, wage and hour compliance, employee discipline, disability and leave management (including FMLA, ADA, state sick leave laws, COVID-19 leave laws, NYS Paid Family Leave, pregnancy), reductions in force and related WARN Act compliance, accommodation obligations (including disability, pregnancy, religion, domestic violence), privacy in the workplace, classification of employees (exempt/non-exempt/independent contractors), hiring, terminations, restrictive covenants, performance management and many other issues employers face. She has also participated in numerous collective bargaining negotiations and litigated unfair labor practice claims.

Kimberly routinely negotiates and drafts severance agreements and releases, employment agreements, offer letters, employee handbooks and workplace policies, and non-disclosure and restrictive covenant agreements. She conducts management training for employers on a wide variety of employment law topics, including, EEO/anti-harassment training.   

Prior to joining Moses & Singer, Kimberly was an associate at Proskauer Rose LLP.  She earned her J.D. from New York Law School, where she graduated magna cum laude and was a member of the Moot Court Association and the Journal of International and Comparative Law.  With a Masters in Journalism and Public Affairs, Kimberly is a prolific writer and continues to publish alerts to keep her clients updated on the many important developments in the field.

Presentations [View All]
  • Employment Law Issues in the COVID-19 Era: Preparing for Reentry in the Workplace (Webinar), Greater New York Chamber of Commerce (August 13, 2020)
  • Preparing for Reentry in the Workplace (Webinar), June 24, 2020
  • Ten Tips To Help Employers Prevent Discrimination Claims, May 2017
  • NLRB Expands Enforcement Efforts To Non-Unionized Employers Through Social Media Postings and Handbook Policies, September 2012
  • Best Practices For Preserving and Producing Electronically Stored Information, December 2011/January 2012
  • Employment Issues Employers Must Consider When Starting Their Own Business, January 2010
Law School Activities/Honors
  • New York Law School Journal of International and Comparative Law, Staff Member, 1995; Notes and Comments Editor, 1996-1997
  • Semifinalist, Delaware Moot Court Competition; Octofinalist, Froessel Moot Court Competition
  • Recipient, Public Interest Fellowship
  • Author, “Open Video Systems: A Platform Worth Investing In?,” 1996

Representative Matters

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)

Related Articles View All

Biography

Kimberly Klein is a partner and Co-Chair of the firm's Labor, Employment and Employee Benefits practice.  She has extensive experience representing management, as well as high net worth individuals, in employment litigation matters before state and federal courts, as well as federal and state agencies, including the Equal Employment Opportunity Commission, New York State Division of Human Rights, New York City Human Rights Commission, arbitral forums, and others.  In this role, Kimberly has wide-ranging experience litigating discrimination and harassment cases (including sex, age, disability, national origin, equal pay, religion, race, sexual orientation); retaliation; restrictive covenants (non-competes, non-solicitation and non-disclosure); wrongful termination; leave laws; wage and hour claims; wrongful discharge; defamation and other torts; and complex contract claims, including breach of employment and commission agreements.  She also has argued appeals before state appellate courts.

Kimberly regularly advises and counsels employers of all sizes on a wide range of employment issues, including internal discrimination/harassment complaints and investigations, wage and hour compliance, employee discipline, disability and leave management (including FMLA, ADA, state sick leave laws, COVID-19 leave laws, NYS Paid Family Leave, pregnancy), reductions in force and related WARN Act compliance, accommodation obligations (including disability, pregnancy, religion, domestic violence), privacy in the workplace, classification of employees (exempt/non-exempt/independent contractors), hiring, terminations, restrictive covenants, performance management and many other issues employers face. She has also participated in numerous collective bargaining negotiations and litigated unfair labor practice claims.

Kimberly routinely negotiates and drafts severance agreements and releases, employment agreements, offer letters, employee handbooks and workplace policies, and non-disclosure and restrictive covenant agreements. She conducts management training for employers on a wide variety of employment law topics, including, EEO/anti-harassment training.   

Prior to joining Moses & Singer, Kimberly was an associate at Proskauer Rose LLP.  She earned her J.D. from New York Law School, where she graduated magna cum laude and was a member of the Moot Court Association and the Journal of International and Comparative Law.  With a Masters in Journalism and Public Affairs, Kimberly is a prolific writer and continues to publish alerts to keep her clients updated on the many important developments in the field.

Presentations [View All]
  • Employment Law Issues in the COVID-19 Era: Preparing for Reentry in the Workplace (Webinar), Greater New York Chamber of Commerce (August 13, 2020)
  • Preparing for Reentry in the Workplace (Webinar), June 24, 2020
  • Ten Tips To Help Employers Prevent Discrimination Claims, May 2017
  • NLRB Expands Enforcement Efforts To Non-Unionized Employers Through Social Media Postings and Handbook Policies, September 2012
  • Best Practices For Preserving and Producing Electronically Stored Information, December 2011/January 2012
  • Employment Issues Employers Must Consider When Starting Their Own Business, January 2010
Law School Activities/Honors
  • New York Law School Journal of International and Comparative Law, Staff Member, 1995; Notes and Comments Editor, 1996-1997
  • Semifinalist, Delaware Moot Court Competition; Octofinalist, Froessel Moot Court Competition
  • Recipient, Public Interest Fellowship
  • Author, “Open Video Systems: A Platform Worth Investing In?,” 1996
Education
  • New York Law School (J.D., magna cum laude)
  • American University (M.A. in Journalism and Public Affairs)
  • Washington University (B.A.)
Bar/Court Admissions
  • U.S. District Court, Eastern District of New York
  • U.S. District Court, Southern District of New York
  • New York
Representative Matters

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)
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