Burton J. Fishman

BURTON J. FISHMAN

SENIOR COUNSEL

WASHINGTON, D.C.

Tele: (202) 689-1200 | Fax: (202) 689-1209
bfishman@fortneyscott.com

Mr. Fishman has devoted his practice to developing the “law of the workplace,” an interdisciplinary approach that offers employers counsel and representation on a broad range of matters growing out of government regulation of business.


His experience extends to the full spectrum of employment and labor matters, including employment discrimination, affirmative action (OFCCP), the Americans with Disabilities Act (ADA), and human resources counseling. In recent years, his practice has focused on assisting clients with the changing laws of pay equity, worker classification, and similar workplace matters.


He has represented clients throughout the nation in proceedings before the Equal Employment Opportunity Commission, the U.S Department of Labor, the National Labor Relations Board, and in arbitrations and courts at all levels. He has repeatedly been recognized as a Washington SuperLawyer in the labor and employment field by Washington Law & Politics magazine and is a long-served Member of the College of Labor and Employment Lawyers.


Mr. Fishman served as the Deputy Solicitor for National Operations for the U.S. Department of Labor during the George H. W. Bush administration. During that time, he was a departmental spokesman and Congressional witness on such issues as disability law, wage and hour matters, safety and health, and the ‘glass ceiling’ initiative. His familiarity with the regulatory and legislative process has led to his being retained by entities as diverse as the Society of Human Resource Management, the National Association of Manufacturers, and the American Bar Association to represent them regarding emerging issues and proposed legislation before Congress and the executive agencies.


Mr. Fishman currently serves as the co-chair of the “DC Perspectives Group,” a committee of the Employment Law Alliance.  Members of the group are leading employment law practitioners from across the United States.  Mr. Fishman has served as co-chair (management) of the Federal Legislative Developments Committee of the American Bar Association’s Labor and Employment Law Section and also as a member of its Equal Employment Opportunity Committee.


A widely-recognized author of over 100 books and articles on workplace issues, his publications include: The ADA: Ten Years After; HR Guide to Employee Management; The HR Question and Answer Book; Workplace Privacy; Thompson’s HR Policies; and Guide to Accommodations of Disability and Religion. Mr. Fishman is an experienced speaker on employment issues, including several presentations at SHRM national meetings, at the American Bar Association Annual Convention, and at similar gatherings throughout the country.


Mr. Fishman is an active supporter of the arts in Washington, serving as the General Counsel of the Washington Performing Arts Society and as a founding member of the Lawyers Committee of the Shakespeare Theatre Company of Washington.

Firm Practices


Admitted to Practice

  • District of Columbia
  • Maryland
  • United States Supreme Court
  • Various U.S. Courts of Appeals and U.S. District Courts


Education

  • Yale University (J.D.)
  • Princeton University (Ph.D. with distinction)
  • Cambridge University, Cambridge, England (M.A. with honors)
  • Occidental College (B.A. magna cum laude)

Burton Fishman's Speaking Engagements:

  • 5/20/2026 – Employment Law Alliance, “DC Perspectives: Strategies for US Employers Navigating Continual Employment Law Changes.” Read more and register here.
  • 3/1/2026 – Employment Law Alliance, “DC Perspectives.”
  • 1/20/2026 – DC Insider – Employer Update, “State of Civil Rights Under Trump 2.0.” Listen here.

The New EU Pay Transparency Directive

June 11, 2026
The Directive is driving a significant shift in compensation reporting and transparency across the EU, and requires employers to disclose salary ranges to applicants, share internal pay-setting criteria, and conduct gender pay reporting. With the June 7, 2026, deadline for Member States to transpose the Directive into national law, employers need to understand their compliance obligations and prepare for unresolved implementation questions. In this webinar, FortneyScott attorneys will help U.S. companies with operations in the EU understand the Directive’s requirements, including how they differ from U.S. compliance frameworks. We will discuss best practice lessons that can be adopted from U.S. pay transparency and reporting laws and, importantly, provide key contrasts of the U.S. practices that are not applicable in the EU. Key topics include: The Directive’s scope and coverage Reporting obligations under the Directive Status of Member State transposition Practical compliance steps employers can take now Who should attend. This webinar is designed for in-house counsel, HR leaders, and senior professionals at multi-national organizations responsible for compensation, benefits, and employment law compliance.

Register for FortneyScott's Next Webinar on The New EU Pay Transparency Directive

May 21, 2026
Join FortneyScott attorneys on Thursday, June 11, 2026, from 12:00 p.m. to 1:00 p.m. EDT for a complimentary webinar on the European Union (“EU”) Pay Transparency Directive (the “Directive”). To register, please click here . The Directive is driving a significant shift in compensation reporting and transparency across the EU, and requires employers to disclose salary ranges to applicants, share internal pay-setting criteria, and conduct gender pay reporting. With the June 7, 2026, deadline for Member States to transpose the Directive into national law, employers need to understand their compliance obligations and prepare for unresolved implementation questions. In this webinar, FortneyScott attorneys will help U.S. companies with operations in the EU understand the Directive’s requirements, including how they differ from U.S. compliance frameworks. We will discuss best practice lessons that can be adopted from U.S. pay transparency and reporting laws and, importantly, provide key contrasts of the U.S. practices that are not applicable in the EU. Key topics include: · The Directive’s scope and coverage · Reporting obligations under the Directive · Status of Member State transposition · Practical compliance steps employers can take now Who should attend. This webinar is designed for in-house counsel, HR leaders, and senior professionals at multi-national organizations responsible for compensation, benefits, and employment law compliance. Register to attend. To register, please click here .

Department of Labor Eliminates Biden Increased FLSA Salary Thresholds

May 14, 2026
On Thursday, May 14, the U.S. Department of Labor’s Wage and Hour Division issued a technical amendment removing the salary threshold increases under 29 C.F.R. Part 541, adopted in April 2024. DOL stated that it was following the decisions made by federal courts in November, and that the amendment reinstated the 2019 salary levels applicable to the executive, administrative, and professional exemptions under the Fair Labor Standards Act. The current salary levels are $684 per week for exempt employees and $107,432 annually for highly compensated employees. This change codifies the enforcement posture DOL has maintained since the 2024 rule was invalidated. While this does not alter current compliance obligations, it resolves regulatory inconsistency by restoring the 2019 framework in the regulations and eliminating the 2024 provisions. Employers should confirm that exemption classifications continue to be evaluated against the reinstated 2019 thresholds and remain attentive to any future rulemaking in this area. Stay tuned. FortneyScott will continue to monitor whether there will be further substantive revisions to the white collar regulations. If so, it is likely be in the DOL’s regulatory agenda, which we understand will be published in the near future. Should you have any questions, please reach out to your FortneyScott attorney.

FAR Council Implements EO 14398: Federal Contractor Compliance Obligations Begin

April 28, 2026
Federal contractors are facing immediate changes to implement stepped-up efforts to restrict DEI discrimination, including new mandatory contract clauses, expanded audits, and significant potential legal exposure. These far-reaching changes will impact prime contractors and all tiers of subcontractors. Any employer that is a federal contractor should immediately prepare for these new compliance obligations.

DOL Proposed Joint Employer Rule

April 23, 2026
DOL Proposes New Joint Employer Standard In an effort to create a uniform, nationwide standard for determining joint employer status, the U.S. Department of Labor’s Wage and Hour Division will publish a Notice of Proposed Rulemaking (NPRM) in the Federal Register on April 23, 2026. The proposed Joint Employer Rule aims to restore a standard similar to the more business-friendly Trump 1.0 rule. Specifically, the proposed rule clarifies when multiple organizations would be considered joint employers under the Fair Labor Standards Act, the Family and Medical Leave Act, and the Migrant and Seasonal Agricultural Worker Protection Act. Comments are due within 60 days of the published date, or June 22, 2026. The proposed rule seeks to end nearly a decade of vacillating rules, as both the Trump and Biden administrations had tried promulgating a final rule previously. Those prior attempts created a series of conflicting executive and judicial rulings. As stated by acting Labor Secretary Keith Sonderling, this NPRM is intended to establish a “clear standard on joint employment.” Four-Factor Test The proposed rule modifies the Trump 1.0 standard, which focused heavily on requiring actual control by one company over another to establish joint employment. A prior judicial challenge to that approach was successful, requiring some modification to any new standard introduced thereafter. The proposed rule, therefore, responds by offering a four-factor test that is still heavily weighed on aspects of control. The four factors are whether a company: has the power to hire or fire a worker; supervises or controls a worker’s schedule or conditions of employment to a substantial degree; determines the rate and method of payment; and maintains a worker’s employment records. No single factor is dispositive, and the analysis will focus on the totality of the circumstances. Single National Standard Still a Goal The DOL acknowledged that some circuit courts continue to consider more factors and said the four listed factors were “not exhaustive.” Additionally, other federal agencies and several states have their own joint employer standards, some of which are directed at specific industries. For instance, the NLRB finalized its joint employer rule in late February 2026, with a similarly aligned standard that has some variances from DOL’s proposed standard. A final rule is anticipated soon after the comment period closes. Once issued, the rule may be subject to judicial challenges from interested parties that previously opposed similar regulatory approaches. Contact your FortneyScott attorney for additional information on how to submit comments and/or prepare for its impact on your workforce.
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