Welcome back to Labor of Law. I'm Erin Mulvaney in Washington, covering labor and employment from the Swamp to Silicon Valley. This week, more Obama-era rules faced scrutiny and nominations moved forward. Companies are trying to learn harassment lessons. And some big issues—pay equity and LGBT rights—got new attention in the courts. We'll run through the big developments this and every week.

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ON THE DOCKET

➤➤ Can employers use prior salary to justify lower pay? It's a question that has vexed employers and the courts. The Ninth Circuit, sitting en banc this week, marked the latest scrutiny in this area of employment law. Read my coverage of the oral arguments here. Aileen Rizo, a math consultant in California, discovered she was paid less than men in comparable positions—as much as $10,000 in some cases. She sued when her bosses justified her lower pay because it was based on her previous salary at her job in Arizona. The Equal Employment Opportunity Commission and women's rights groups weighed in on this case, arguing vehemently that such a practice institutionalized the gender pay gap.

>> Across every industry, occupations and education level in the United States, pay disparities persist between men and women, according to an amicus brief filed by Equal Rights Advocates. Jessica Stender, who represents the group and the other women's rights organizations, argued before the Ninth Circuit that the fact there wasn't an intent of discrimination doesn't matter. Using prior pay as a sole factor, she said, perpetuates a cycle. Women make 80 cents on the dollar to their male counterparts. The gap is more dramatic with women of color.

“Because women frequently begin their careers earning lower salaries than men, they remain at a stark disadvantage throughout their working lives. Women who start with lower salaries will continue to earn less than their male counterparts if employers set pay based only on prior salaries,” Equal Rights Advocates wrote in its brief.

>> What's the other side say? Jones Day partner Shay Dvoretzky, arguing for the Fresno County school district and superintendent, faced tough questions. Dvoretzky's main point: prior salary is a neutral question—not sex-based and therefore not subject to the Equal Pay Act. Factors not related to sex are fair game in determining salary, he said. The judges seemed puzzled by the arguments from Rizo's attorney, the EEOC and Stender, who added a caveat to their arguments that prior salary could be used in a bundle of other factors. Some of the judges seemed skeptical: It's either okay or it isn't. Right? We'll see. If you watched the argument, and have some thoughts, please shoot me a note.

>> The bigger picture: Around the country, local governments have targeted employers' use of prior salary to address the pay gap. Laws banning inquiry have been enacted in three states, four cities and Puerto Rico. Also, in this year alone, legislation has been introduced in 21 states and local governments that would ban or limit the prior salary question.

➤➤ The U.S. Supreme Court passed up a chance to weigh in on the scope of LGBT workplace protections. The justices, without comment, decided not to take up the case of Jameka Evans, a Savannah security guard who sued Georgia Regional Hospital for harassment and claiming she was forced to leave her job because she is a lesbian. This is one of several cases swirling surrounding the question of whether sexual orientation should be included under “sex” under Title VII of the Civil Rights Act of 1964. The argument itself has risen only in recent years, and succeeded in many high-profile courts, and is, for many businesses, an inevitable right they would like to extend to their LGBT employees.

“The public is on the right side of history; it's unfortunate that the Supreme Court has refused to join us today, but we will continue to invite them to do the right thing and end this hurtful balkanization of the right of LGBT people to be out at work,” said Greg Nevins, Employment Fairness Project Director for Lambda Legal, the legal advocacy group that filed the cert petition for Evans case to the Supreme Court.

>> There's a still split and it could widen. The U.S. Court of Appeals for the Seventh Circuit in April ruled for a woman who claimed a community college discriminated against her because she was a lesbian. We're all watching the Zarda v. Altitude Express case in the U.S. Court of Appeals for the Second Circuit. The decision there—the case is also in front of the en banc court—could widen the divide. Oral arguments were heard in September.

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RULES AND REGULATIONS

➤➤ The tension at the NLRB and other agencies is manifest more than ever. The National Labor Relations Board, with its first Republican majority in nearly a decade, is in the process of rolling back some of the measures passed under the Obama administration that were detested by businesses. Many rules and precedent are in the crosshairs. The latest: the union election rule that, depending on which side you're on, either created more transparency and efficiency in union elections or was a union tool to “ambush employers.” The NLRB issued a request for information, the first step it would take to rollback the rule that took effect in 2015, and the Democratic members lashed out in their dissents, arguing there was no basis for prompting a change to the rule. Read the National Law Journal story here.

>> Democratic board member Mark Gaston Pearce, said in his dissent, called the request for information a quest for “alternative facts.”

“The amended procedures have now been in place for some two and a half years, and my colleagues show no serious justification for calling them into question,” Pearce wrote. “Indeed, it is with some irony that I am reminded of the sentiment expressed in dissent to the final rule in 2014 that 'the countless number of hours spent by board personnel in rulemaking' would be better spent expeditiously processing cases.”

>> Regardless, the rulemaking is moving forward. The majority argued that the dissents were surprising. They were just asking a simple questions about the rule, they said. Mark your calendars, responses to the request for information will be due Feb.12.

➤➤ More moves and nods. The Senate HELP Committee advanced the nominations of Kirkland & Ellis partner Kate O'Scannlain for U.S. Labor solicitor, Preston Rutledge for assistant labor secretary for the Employe Benefits Security Administration; William Beach for the Bureau of Labor Statistics Commission and Scott Mungo for OSHA administrator. Bloomberg BNA reportsthat Arthur Rosenfeld, a former George W. Bush-era labor lawyer, is awaiting final approval to become DOL's director of the management-standards office.

>> It was also a bit of a surprise to some observers that President Donald Trump re-appointed Chai Feldblum to the EEOC for a third term. Feldblum is an Obama appointee, the first openly gay commissioner and a strong advocate for LGBT rights. She has taken on transgender bathroom wars, among other hot-button progressive issues that fire up conservatives. [Power Line Blog]

>> Ondray Harris, a former George W. Bush Justice Department lawyer, is now leading the Labor Department's Office of Federal Compliance Programs. Harris joined DOL from LeClairRyan. [Bloomberg BNA]

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CORPORATE OUTLOOK

Harassment, discrimination, and retaliation in the workplace are unacceptable but have been tolerated for far too long.

-Sheryl Sandberg, Facebook Chief Operating Officer, and Lori Goler, VP of People

➤➤ Sexual harassment questions persist. It's not just watching for who is the next to fall. Companies are grappling with a change in the status quo regarding men in power and how human resources handles and works to prevents these cases. It's happening on many different levels.

Here's a roundup of how the new narrative about sexual harassment is playing out…

>> The Senate tax bill. Watch for the outcome in reconciliation of a fascinating amendment that passed in the Senate on the massive tax legislation. Part of the language of the tax bill targets the non-disclosure agreements many have argued are used to silence accusers. Under the language of the bill it states, no deduction will be allowed for settlements or payments related to sexual harassment or abuse or attorney's fees related to such settlements. [Littler Mendelson].

>> The EEOC. The agency, of course, is already on the hook for enforcing federal civil rights laws and pushing sexual harassment guidelines for companies. But the commission plans to issue new guidelines for the first time in two decades and also will monitor harassment settlements more closely moving forward. [Reuters]

>> Human resource departments. The dual function of HR—fielding workplace complaints while also shielding a company from liability—creates a conflict that could stifle progress in preventing harassment, particularly if the HR officer's job might be at stake. The wave of allegations have put a new light on HR. Many companies are hiring outside firms to do analyses on what can be done to improve workplace culture. [New York Times] And also, here are some tips on what works and what doesn't. [Upshot]

>> The influence industry. “Part of a frequently disparaged profession, female lobbyists have emerged as especially vulnerable in legislatures and in Congress because, unlike government employees, they often have no avenue to report complaints and receive due process.” [The New York Times]

>> The hospitality industry. Sexual misconduct allegations are emerging publicly in the hospitality industry. Women are raising awareness about the restaurants and hotels where they contend they were routinely subjected to abuse and harassment. They say the nature of relying on tips makes them particularly vulnerable. [Associated Press]

>> Tech world. Facebook recently shared its policy on sexual harassment. The company's COO Sheryl Sandberg writes: “Every company should aspire to doing the hard and continual work necessary to build a safe and respectful workplace, and we should all join together to make this happen.” [Facebook Newsroom] Meanwhile, Susan Fowler, the former Uber engineer who blew the whistle on Uber's culture, was name the Financial Times person of the year. [Financial Times]

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AROUND THE WATER COOLER

Here's a brief roundup of more labor & employment headlines…

➤➤ How does the language of job posts affect gender disparity in tech? ”Use of certain phrases like 'whatever it takes' or 'tackle' in job postings could affect who applies for tech jobs, possibly contributing to the lopsided gender makeup of the industry, new research suggests. [The Wall Street Journal]

➤➤ Federal report finds regression for black managers in financial services industry. The Government Accountability Office looks into diversity trends. It runs down the good and bad news. [Washington Post]

➤➤ Meet your new boss: An algorithm. Companies are using artificial intelligence and other elements of the work-on-demand business model to automate workforce management tasks. [Wall Street Journal]

➤➤ Age discrimination case moves forward against Ohio State University. The AARP had a win on two fronts in an investigation into where the university has practices and policies that discriminate against older workers. [Law.com]

➤➤ Ripped from the headlines: 2017 employment law issues. What a year 2017 was for employment law, with sexual harassment, LGBTQ rightsand medical marijuana grabbing the headlines. And five of the top employment law bloggers discuss what those headlines mean for employers. [Law.com]

➤➤ Best places to work? Here's a roundup of the prominent employee feedback site awards of the best place to work. Facebook is the top. Check out the rest. [Glassdoor]

➤➤ Walmart will offer employees access to pay sooner. ”The world's biggest retailer has unveiled financial-planning tools designed by Even Responsible Finance Inc. and PayActiv Inc., a move that lets its employees access earned wages ahead of scheduled paychecks and avoid bounced checks or payday lenders.” [Bloomberg]

That's all for this week! Thanks for joining me. Shoot me a note and let me know what I'm missing. [email protected]