Welcome to Labor of Law. The U.S. Supreme Court could soon decide the lawfulness of employee arbitration agreements that ban class actions. Trump's National Labor Relations Board faces ethical hiccups. And the latest in labor and employment lateral moves.

Happy post-Valentine's Day. The #MeToo movement is putting a new spotlight on workplace “love contracts.” Good idea or does it go too far?

 I'm Erin Mulvaney in Washington, D.C., covering labor and management issues and workplace culture from the Swamp to Silicon Valley. What's keeping you up? Send me any ideas or just say hi: [email protected] or @erinmulvaney on Twitter.

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Waiting for 'Murphy Oil'

The U.S. Supreme Court is poised to soon start issuing decisions—and we're all waiting to see what the justices will say in Murphy Oil. The trio of cases were argued on the first day of the term—making them the oldest still without a ruling.

More than half of private-sector employers have mandatory arbitration procedures, and 30 percent of these include class action waivers, the Economic Policy Institute reported in a study last year. The questions the justices are grappling with hold new significance in the #MeToo era, where accusers are banding together to speak out about sexual harassment. Justice Ruth Bader Ginsburg in recent weeks has praised women coming forward to allege harassment. “For so long women were silent, thinking there was nothing you could do about it,” she said in one interview.

Alison Frankel at Reuters this week looks at how shareholders are harmed when companies ban employees from participating in class actions. “When employees lose the power to act in concert, corporations are less likely to be held accountable for mistreating workers.” Frankel points to Hollywood producer Harvey Weinstein and his company's woes. The share price of Steve Wynn's company Wynn Resorts fell by 18 percent after the Wall Street Journal reported on allegations against the casino mogul. My Law.com colleague Meghan Tribe has more here on the lawyering in the Wynn saga.

➤➤ This week, 56 attorneys general urged Congress to enact legislation to exempt sexual harassment victims from mandatory arbitration clauses in employment contracts. The letter notes, as reported by my colleague Samantha Joseph, that arbitration can be problematic in the context of harassment claims. Arbitrators may not have the same training as judges, and secrecy clauses run counter to public interest.

A team from Fisher Phillips, in response to the letter, had this suggestion: “You may even want to consider proactively adjusting your policies as several high-profile employers have already done.”

We'll have a lot more to say soon as SCOTUS posts the Murphy Oil case—and I'll want to hear from you.

Execs' apology plays in a pay-equity suit

My colleague Ross Todd in San Francisco puts it like this: “Any company facing media scrutiny over workplace sexual harassment should take note: Your public apology could one day become 'exhibit A' in a gender discrimination lawsuit.”

The law firm Alexander Krakow + Glick this week sued Vice Media in Los Angeles Superior Court. Michael Morrison and Jessica Choi were on the complaint, which you can read here. The suit contends Vice's “predominantly male leadership” created a “company culture that marginalizes, demeans and undervalues women.”

The complaint's opening paragraph prominently featured quotes from a statement Vice co-founders published in December in response to a New York Times expose.

The LA Times has more here on the new lawsuit, and the New York Times here.

Who's representing Vice? No word yet. The company said in a statement: “As a company, we have made a significant commitment to a respectful, inclusive and equal workplace. That commitment includes a pay parity audit started last year, a goal of 50/50 female/male representation at every level by 2020, and the formation of a Diversity & Inclusion Advisory Board.”

'Given everything that's going on'

John Ring's NLRB confirmation is delayed. The Senate HELP committee postponed Morgan Lewis partner John Ring's confirmation hearing to at least March 1, at the request of Democratic ranking member Sen. Patty Murray. The delay might have less to do with Ring himself—he's a Morgan Lewis vet—and more to do with a with the new ethics spotlight on NLRB member and former Littler Mendelson shareholder William Emanuel and the agency's moves to implement structural changes. “Given everything that's going on … we have just asked for more time to find out what is going on,” a Senate aide told Politico.

Over at the agency itself… President Trump's campaign and his businesses did not violate employee rights, according to a memo this week released by the NLRB. The decision maintains that “overbroad policies and rules” do not violate the National Labor Relations Act and follows unfair labor practice charges filed by the Committee to Preserve the Religious Right to Organize.

The committee was represented by Weinberg, Roger & Rosenfeld. The group claimed Trump entities required employees to sign confidentiality agreements that interfered with employee rights to engage in union activities. Seyfarth Shaw in San Francisco and Trump Organization attorneys represented the Trump entities. Bloomberg Law has more on the memo here.

Labor Laterals and New Hires

➤➤ Fisher Phillips is boosting its Seattle presence through a merger with the labor and employment boutique Michael & Alexander. Atlanta-based Fisher Phillips opened its first Seattle office in 2015. The addition of the Michael & Alexander lawyers and staff expands Fisher Phillips' Seattle office to 13 lawyers and 16 staff. Big Law Business has more here.

Seattle is a self-described hub of innovation when it comes to labor and employment law—the city's first-in-the nation law letting ride-hailing drivers unionize is now being closely watched at the Ninth Circuit.

➤➤ Jackson Lewis picked up Gary Tocci as a principal in the firm's Philadelphia office. Tocci's joining the firm from Reed Smith. Tocci, speaking with my colleague Lizzy McLellan in Philadelphia, said Jackson Lewis provided a better platform to grow his practice. “Some of the larger firms' labor and employment groups are shrinking. Not to say anything disparaging about those firms, including my former firm, but it is great to go into a firm where you have such a tremendous backup,” Tocci said.

➤➤ Houston litigators Scott McLaughlin and Marlene Williams jumped from Texas firm Jackson Walker to join global firm Eversheds Sutherland in Houston. “A client asked me to talk to Eversheds, and that was largely platform-driven,” McLaughlin told my colleague Brenda Sapino Jeffreys.

Please send any moves announcements and new hires to [email protected].

 

Around the Water Cooler

Big Data and Employment Decision-Making: How Analytics Can Add Value
“Data-driven analysis that sheds light into what employees are doing, how they work and how an organization's policies or practices impact them can be incredibly valuable,” Aaron Crews, chief data analytics officer at Littler Mendelson, says. [Law.com]

IBM Sues Former HR Boss Hired by Microsoft
 IBM is suing former executive Lindsay-Rae McIntyre, Microsoft's new chief diversity officer, for alleged violations of a one-year noncompete agreement. Paul Weiss partner Robert Atkins, co-chair of the firm's litigation department, represents IBM, and teams from Orrick and Morgan Lewis are defending McIntyre and Microsoft. [Reuters]

Trump's NLRB Picks Are Scaring Unions
“After winning a precedent-setting ruling in 2016 establishing the right of graduate students to unionize through the NLRB, unions are now hesitant to test their luck in Washington, lest the current board reverse their victory.” [Bloomberg]

Most U.S. Workers Unafraid of Losing Their Jobs to Robots
 A Gallup poll released this week shows that 23 percent of Americans fear losing their jobs as automation increases in the workforce. Manufacturing and construction appear to be the most vulnerable. [Gallup]

Suspending Obama-Era Pay Data Rule Was Lawful, US DOJ Tells Court
The Justice Department responded to the lawsuit filed last year by advocacy groups who claimed the rolling back a pay data requirement was illegal and at the behest of special interests. [National Law Journal]

How to Spot a Whistleblower and Prevent Retaliation: 10 Tips
What should employers do when they become aware of a potential whistleblower? And how can companies address a potential whistleblower's concerns while simultaneously preventing a claim for retaliation? [Corporate Counsel]

In Sexual Misconduct Merry-Go-Round, O'Melveny Loses Role, Adds Another
Gibson, Dunn & Crutcher will serve as outside counsel to Wynn Resorts to conduct “an expanded and comprehensive review” of the company's internal policies and procedures to ensure that it maintains “a safe and respectful workplace for all employees.” [American Lawyer]

Growing Into the Gig Economy: Pending Legal Challenges for the Industry
“The gig economy is the wave of the future and, like any new and disruptive industry, there will undoubtedly be growing pains. But a smart legal strategy can lay the groundwork for a far more seamless transition into this era,” writes Jacob Pultman, the U.S. litigation head at Allen & Overy. [New York Law Journal]

Trump Is Abandoning McDonald's Workers—And Everyone Else
“Settling a case might not sound so bad. But in this instance, 'settling' is a euphemism for abandoning at the 11th hour a groundbreaking inquiry into whether a major employer like McDonald's should be held accountable for violating the rights of its low-paid workers,” write former NLRB member Sharon Block and Benjamin Sachs of Harvard Law School. [The Washington Post]

Where Did Your Pay Raise Go? It May Have Become a Bonus
“A growing preference among employers for one-time awards instead of raises that keep building over time has been quietly transforming the employment landscape for two decades. But it was accelerated by the recession's intensity, which made employers especially cautious about increasing labor costs.” [The New York Times]

That's all for this week. Thanks for reading. Don't forget to shoot me a line with thoughts, ideas or concerns: [email protected]