Welcome to Labor of Law. This week we're catching up with the Obama-era Labor Department solicitor for her views on changes afoot. Uber's big announcement on eliminating forced arbitration comes with a caveat. And scroll down to see who got the work in the week's biggest cases and see some of the firms announcing new hires.

➤➤ I'm Erin Mulvaney in Washington, D.C., covering labor and employment from the Swamp to Silicon Valley. Follow this weekly newsletter for the latest analysis and happenings. If you have a story idea, feedback or just want to say hi, I'm at [email protected] and on Twitter @erinmulvaney. Thanks always for reading. Let's get started. 

 

DOL Solicitor's Leadership Takes Shape

➤➤ The leadership of the U.S. Labor Department is taking shape as new hires solidify their posts—and as several senior staffers are reportedly planning to retire. Labor Solicitor Kate O'Scannlain (above) recently spoke to the U.S. Chamber of Commerce at a closed-door event—where, according to Bloomberg BNA, she revealed plans to distribute an enforcement memo to regional field offices.

This week, we caught up with Patricia Smith, who served as the Obama-era solicitor, to see what advice she would offer her successor and generally what she's seeing and hearing from her post as senior counsel at the National Employment Law Project.

Smith says the regulatory agenda will likely include adjusting child labor standards, defining overtime and a shifting direction on the fiduciary rule. Rulemaking seems to be moving at an accelerated pace. “That gives the impression they are saying ,'We are going to take everything back,'” Smith says.

About DOL turnover, Smith had this to say: “The department has a lot of very senior people in the career staff. During a lot of the Republican years there was very little hiring. There is a generation gap. A lot of senior people are eligible for retirement and middle ranks are relatively thin.” The thought among some staffers might be “I don't need to do this anymore if this department is not working on what I think is its mission.” Smith adds: “Some of them are now leaving because they don't want to undo work they did previously.”

On any advice Smith would give to O'Scannlain, who joined the Labor Department after a 12-year run at Kirkland & Ellis: “She needs to make sure that the solicitor's office is not sidelined in the face of strong policy objectives and make sure that policy determinations and proposed policies are legally sound.”

“The Labor Department is filled with lawyers not in the solicitor's office. Their job is not to be the lawyer. … You should not think that you can run the office based simply on the political appointees.”

As for the future? Watch for a program the Labor Department proposed that would allow companies to self-audit through the PAID program. Smith said this strategy could reflect an interesting trend moving forward.

 

Big Companies Scale Back Arbitration Policies. There Is a Caveat.

➤➤ Uber Technologies announced this week that it would no longer stop drivers, employees and customers from bringing sexual assault or harassment claims in court. Microsoft Corporation made a similar announcement last year, as the #MeToo movement pushed companies to reconsider arbitration clauses that advocates say silence victims. Uber announced the new policy about two weeks after a CNN investigation revealed more than 100 drivers were accused of assaulting or abusing passengers in the last four years.

Uber chief legal officer Tony West (above) told my colleague Stephanie Forshee at Corporate Counsel, “As we look at ways to improve the safety of the Uber platform, you really can't do everything to enhance the safety without dealing with sexual harassment and assault. What's important to us is making sure we're helping to facilitate victims to choose the venue of redress where they will seek some sort of justice whether through mediation, arbitration or open court.”

The company's new policy will also no longer require sexual assault and harassment survivors to sign confidentiality provisions in settlement agreements. It will also publish a transparency report on sexual assaults and other incidents. However, class action lawsuits will still be prohibited under the policy — which has been met with criticism.

There's a catch to all of this.

“Uber's announcement appears to be a wolf in sheep's clothing,” said Seth Lesser, partner at Klafter Olsen & Lesser, a New York law firm specializing in workers' rights. “The company is ending its long-standing policy of mandatory arbitration only for individual claims, but not for class action lawsuits, knowing full-well that class actions are the only way most employees can afford to wage such a legal battle. If Uber really wanted to protect its employees, it would do away with mandatory arbitration altogether rather than enact what appears to be a token gesture at generating unearned goodwill.”

This caveat puts even more emphasis on the outcome of the U.S. Supreme Court's decision in Epic Systems this term. The justices any day now are expected to issue a ruling that confronts the scope of arbitration clauses in employment agreements.

Notable Moves

→ The U.S. Labor Department hired Rachel Mondl, a Gibson, Dunn & Crutcher associate, for a top-level policy post, according to Bloomberg. Mondl will serve as the DOL's new deputy solicitor for policy. During her time at Gibson Dunn she represented the U.S. Chamber of Commerce in a lawsuit challenging the fiduciary rule.

→ Barnes & Thornburg LLP hired former Ogletree Deakins Nash Smoak & Stewart's Gray Mateo-Harris as a labor and employment partner in Chicago, Law360 reported. She has defended employers against employment-related disputes in state and federal courts that involve wage-and-hour violations and violations of equal employment opportunity laws, the firm said.

→ Jackson Lewis P.C., hired David Sawyer as a principal in the firm's Miami office. Sawyer, who has almost 20 years of experience advising clients on employee benefits tax matters, is leaving Ogletree Deakins Nash Smoak & Stewart.

→ Kramer Levin hired Marissa Holob as a partner and co-chair of the employee benefits department. Holob joins Kramer Levin from Stroock & Stroock & Lavan LLP, where she was a partner. Prior to joining Stroock, she was an associate at Sullivan & Cromwell LLP.

Who Got The Work

→ Fox News reached a $10 million settlement in gender and race discrimination suits filed against the company. The plaintiffs' lawyers included Douglas Wigdor of Wigdor Law LLP. Fox was represented by DLA Piper's Joseph Piesco. Read more at The New York Times.

→ Dell Technologies Inc. agreed to pay $2.9 million to settle claims of pay bias against more than 500 female and African American employees in California and North Carolina. The Labor Department's Office of Federal Contract Compliance accused Dell with pay discrimination after an audit. Read the conciliation agreement here. The company was represented by Michael Burkhardt of Morgan, Lewis & Bockius.

→ Walmart settled a dispute with the NLRB over worker protest. An agreement was signed last month and the company agreed to ease its dress code. Attorneys from Steptoe & Johnson LLP represented the company. Joey Hipolito with The Organization United for Respect at Walmart represented the workers. [Bloomberg]

Around The Water Cooler

➤ A loss for Seattle could mean a boon for unions elsewhere. A decision siding with the U.S. Chamber of Commerce in an effort to allow ride-hailing drivers to unionize provides a silver lining for other union efforts. The Ninth Circuit ruled the city's ordinance did not violate the National Labor Relations Act. [Bloomberg]

➤ What the Trump administration's new direction on child labor laws means. The protections against hazards, which could be rolled back, were put in place because children were subjected to difficult and dangerous working conditions. [Teen Vogue]

➤ AT&T policy punishes pregnant women, class action says. Cohen Milstein Sellers & Toll is taking on a class action with the ACLU, arguing that a policy at AT&T retail stores discriminates against pregnant women. AT&T is represented by the law firm Paul Hastings. [Law.com]

➤ How attorneys are picking juries in the #MeToo era. Lawyers on both sides are looking closely at jurors' personal experience in harassment cases with the attention of these cases tilting the scales in court toward accusers. [Bloomberg BNA]

➤ Four considerations as the NLRB mulls joint-employer rule-making. The NLRB doesn't often take up rulemaking. “Rulemaking has been the exception to the rule, not the rule,” Michael Sullivan, chair of Goldberg Kohn's labor and employment group, said. [NLJ]

That's all for this week. Please shoot me a note with feedback, suggestions or story ideas to [email protected]. Thank you for reading! -Erin