Welcome to Labor of Law. More courts are applying the reach of the U.S. Supreme Court's Epic Systems ruling. A broad pay-data disclosure bill failed in California, and the U.S. Labor Department submits its new take on pay-data investigations. More optics than substance? Plus: Scroll down for notable moves and who got the work. Lots of new cases, including the Barnes & Noble ex-CEO suing for wrongful termination.

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.

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Broad Reach of 'Epic Systems'

 

Federal appeals courts are giving the Supreme Court's “Epic Systems” worker-arbitration ruling test drives. In recent weeks, two decisions from the U.S. Court of Appeals for the Sixth Circuit caught some attention. Earlier this month, a panel, led by Trump appointee Amul Thapar, extended the ruling's reach to the Fair Labor Standards Act in the case Gaffers v. Kelly Services. (The Supreme Court case only confronted the National Labor Relations Act.)

Now a new ruling in the Sixth Circuit applies both Epic and Gaffers to independent contractors. “The holdings of Epic and Gaffers mean that individual arbitration agreements are enforceable against both employees and independent contractors,” Judge Alice Batchelder wrote for the panel in McGrew v. VCG Holding Corp. The court ruled against a group of exotic dancers who wanted to form a class action to sue over alleged labor violations.

The decision shows how gig companies could stand to benefit from the U.S. Supreme Court's Epic Systems decision, according to Fisher Phillips partner Richard Meneghello.

“This is welcome news for gig companies, as the ruling demonstrates that this standard can apply to federal misclassification proceedings,” Meneghello said in a recent blog post. He added, “While we can't predict whether other federal appeals courts will rule in this same manner, signs are positive that the Epic ruling could be an epic piece of good fortune for gig companies defending against misclassification cases.”

The case McGrew v. VCG Holding Corp. centers around a Louisville adult club that required dancers to sign agreements that included a class waiver provision. The agreement doomed the case, and a trial judge dismissed the complaint. The club, of course, is not a gig company, but the misclassification issue has plagued on-demand businesses.

➤➤ Which brings us to… California, home to many gig companies.

Misclassification is the topic du jour here. The Epic Systems decision certainly could help companies resist efforts of employees trying to band together to challenge workplace inequities. At the same time, these companies are facing a bigger issue: fallout from the California Supreme Court ruling in Dynamex Operations West. That's the decision we've seen a lot on—and we'll see more of. The decision makes it harder for companies to justify their workers as independent contractors.

There's been intense lobbying in recent weeks—as business advocates press state lawmakers to make some move to check the full effect of the ruling. The days in the session are dwindling. “There's no hint as of yet, however, that this lobbying will have any impact on the legislature; hiring entities need to proceed under the assumption that the ABC Test is the new normal when it comes to misclassification,” Meneghello wrote in his recent blog.

Bottomline: California-based employers “need to adjust to the new reality and assume things aren't going to be changing,” he declared.

 

Who Got the Work

 

>> Former Barnes & Noble chief executive Demos Parneros is suing for alleged wrongful termination and defamation in Manhattan federal district court. Debra Raskin and Anne Clark of New York's Vladeck, Raskin & Clark represent Parneros, who claims Barnes & Noble issued a “false” press release about his termination. Senior partner Daniel Kramer at Paul, Weiss, Rifkin, Wharton & Garrison is counsel to Barnes & Noble. The NLJ has more here on how the case raises issues about what companies are saying, and to whom, about fired executives in the #MeToo era.

>> A team from Faegre Baker Daniels represented Wells Fargo in a federal appeals case where a group of African-American and Latino employees and would-be hires alleged discriminatory employment practices. The U.S. Court of Appeals for the Eighth Circuit on Wednesday ruled for Wells Fargo. The plaintiffs were represented by teams from Newkirk Zwagerman Law Firm and Goldstein, Borgen, Dardarian & Ho. Read more at The Recorder.

>> The Swiss bank UBS Group AG has hired Freshfields Bruckhaus Deringer “to review how the bank handled a complaint from a young female trainee who alleged that a senior male colleague raped her,” according to Bloomberg.

>> Employment attorney John Singer of New York's Singer Deutsch has emerged as the go-to lawyer for Wall Street men who are accused of unwanted advances and other misconduct. He has taken on a crop of clients taking on their former Wall Street employers. The Wall Street Journal has more.

>> Epstein Becker Green partner John Fullerton III in New York represented Sumitomo Mitsui Banking Corp. in a whistleblower case at the U.S. Labor Department. An administrative law judge last week, issuing a 38-page ruling, dismissed pro se claims of alleged retaliation.

 

Notable Moves & Promotions

 

>> Ondray Harris has joined Hunton Andrews Kurth's labor and employment practice as a special counsel in Washington. Harris served less than eight months as the director of the U.S. Labor Department's Office of Federal Contractor Compliance Programs. Read more at Bloomberg Law.

>> Cozen O'Connor has hired four labor and employment attorneys from Buchanan Ingersoll & Rooney. The firm said Mariah Passarelli and Bethany Salvatore are joining as members, and Abigail Green and Tiffany Jenca as associates.

>> Jackson Lewis hired Suzanne Odom in its Greenville office from Nexsen Pruet, where she focused on ERISA, employee benefits and executive compensation issues.

 

Around the Water Cooler

 

>> The Labor Department issued a long-awaited directive detailing how federal compliance officers will tackle pay compensation audits for contractors. Employment attorneys say the change could be more optics than substance. [NLJ]

>> NLRB Democratic member Mark Gaston Pearce was renominated to a new term this week. Business advocates had urged the White House to pick a more business-friendly member for the seat. [BNA]

>> New York released new draft sexual harassment prevention policy for employers, a model for companies to build on. Several policies will be required when the state's law takes effect in October. [New York Law Journal]

>> More affordable options are beginning to emerge for workers in the gig economy for benefits such as insurance and health care. Companies and groups are forming to offer services that the employers do not. [CNN Money]

>> The #MeToo movement inspired a wave of proposed legislation to curb sexual assault. Yet, a survey of state legislatures shows about half have followed through and many have died in committee. [Associated Press]

>> California abandoned a bill that would have required businesses to report pay data to state regulators. The reports would have been confidential. [The Recorder]

>> Questions remain after a Washington federal court rejected Trump's executive orders against federal unions. Will he obey? [Washington Post]

Thanks for reading. Please shoot me a note with feedback, story ideas or tips to [email protected]. Happy Labor Day!