Welcome to Labor of Law. The U.S. Labor Department is taking new steps in the Obama-era wage-discrimination case against Oracle, moving to amend its complaint. We unpack what it all means below. Plus: did you see the 7th Circuit decision saying the Age Discrimination in Employment Act only protects workers—not job applicants? Plus: Littler Mendelson expands further abroad, Barnes & Thornburg broadens its parental leave policy and the federal government's back pay tab is rising as the shutdown drags on. Scroll down for Who Got the Work, notable moves and more. Thanks for reading!

 

 

DOL's New Move Against Oracle

The U.S. Labor Department isn't backing down from a fight with Oracle America over alleged widespread pay inequities at the tech company.

An Obama-era case has dragged on since Jan. 2017, and now things are heating up. The Labor Department solicitor's office, citing an Office of Federal Contract Compliance Programs probe, moved to amend its complaint—bringing in new details from the investigation. Headlines screamed a big dollar amount—$400 million—that DOL alleged Oracle owed to female workers and minorities.

“Oracle's suppression of pay for its non-white, non-male employees is so extreme that it persists and gets worse over long careers,” the Labor Department's Laura Bremer, senior trial attorney, said in the court filing. “Female, black and Asian employees with years of experience are paid as much as 25 percent less than their peers.”

The moves by DOL's litigation team—led by Solicitor Kate O'Scannlain (above), the former Kirkland & Ellis partner in Washington—on the surface cut against the idea the Trump administration would be universally business-friendly. Seyfarth Shawpartner Annette Tyman said the Labor Department generally is still very much focused on pay issues. She said there has not been a slowdown in audits and settlements during the Trump administration.

>> What's new: The Labor Department moved to amend its complaint, saying that certain employment practices, including the use of prior pay, placement in lower positions and hiring tactics on college campuses, are contributing to the suppression of wages at Oracle among female and minority employees. Dorian Daley, general counsel to Oracle, bristled at the Labor Department's complaint.

“This meritless lawsuit is based on false allegations and a seriously flawed process within the OFCCP that relies on cherry picked statistics rather than reality,” Daley said. “We fiercely disagree with the spurious claims and will continue in the process to prove them false. We are in compliance with our regulatory obligations, committed to equality, and proud of our employees.”

>> How we got here: The DOL claims stemmed from a 2014 audit from the Office of Federal Contractor Compliance Programs. Oracle's lawyers at Orrick, Herrington & Sutcliffe have fought for months to dial back or otherwise toss out the claims. The team recently losts its latest bid to dismiss the case. Oracle's attorneys argued against the lawfulness of the Labor Department's administrative law judges, saying none of them were properly appointed and therefore can no longer preside over the agency's case.

>> What we're watching: The case will persist for many more months. One part of the Labor Department's filing that caught my eye: regulators contend Oracle's reported use of prior salary is contributing to gender and racial wage differences among workers.

Prior salary, of course, is at the heart of a pending case at the U.S. Supreme Court—Yovino v. Rizo. A team from Jones Day is trying to overturn a Ninth Circuit ruling that said employers cannot use prior salary to justify paying men and women differently for the same roles. The petition has been pending and relisted many times now—so it's not likely the court will take the case this term.

Former Labor Department Solicitor Patricia Smith, now senior counsel at the National Employment Law Project, was at the helm when the agency brought the Oracle case in 2017.

At the time, there was a move toward targeting pay disparity and discrimination for high-paid jobs, Smith said. Confronting the use of prior compensation, Smith told me, is one key in targeting wage disparities.

“It's the whole argument that discrimination perpetuates itself,” Smith said. “It's at the core of why there are arguments against looking at prior salary.”

 

 

Who Got the Work

>> A team from Greenberg Traurig represents Whole Foods Market Group in a former worker's pro se workplace discrimination and retaliation complaint in the Southern District of New York. U.S. District Paul Engelmeyer on Jan. 11 issued an order that kept alive the complaint. The Financial Times has more on the case here.

>> Oracle faces a class action claiming gender pay and promotion discrimination. The Guardian has more here. The class action claims that thousands of women were paid as much as $13,000 less than their male counterparts. Jim Finberg with Altshuler Berzon LLP represents the workers in the private lawsuit. A team from Orrick, Herrington & Sutcliffe, including Erin Connell, Jessica Perry and Gary Siniscalco, represent the company.

>> Carol Laughbaum of the Bloomfield Hills, Michigan, firm Sterling Attorneys filed a lawsuit in U.S. District Court for the Eastern District of Michigan on behalf of DeAnna Johnson, 54, who said she was subjected to sexual harassment as a production assistant at a Ford truck plant. The attorney previously won a more than $16 million settlement against Ford for sex harassment. Read the complaint here. The Detroit Free Press has more on the case here.

>> “Walmart Inc. will have to face a certified class of job applicants alleging it conducted background checks without their permission, a federal court ruled Jan. 17,” according to a report in Bloomberg Law. “Whether Walmart made disclosures required by the Fair Credit Reporting Act can be answered on a classwide basis, Judge David O. Carter wrote for the U.S. District Court for the Central District of California.” A team from Greenberg Traurig represents Walmart, and the Beverly Hills, California, firm Setareh Law Group represents the plaintiffs. Read the decision.

 

Notable Moves & Promotions

>> James J. Oh has joined Epstein Becker Green as a member in the employment, labor and workforce management practice in Chicago. Oh joins from Littler Mendelson, where he had served on its board of directors.

>> Ogletree, Deakins, Nash, Smoak & Stewart has elevated 17 attorneys to shareholder, including Shontell Powell in Atlanta; Derek Rollins in Austin; Colleen DeRosa and Katherine Manuel in Chicago; Alexander Chemers and Amber Rollerin Los Angeles; Cara Barrick, Brian Berry and Carolyn Knox in San Francisco; Sarah Kuehnel in St. Louis; and Grace Ristuccia in Washington.

>> Seyfarth Shaw announced the promotion of 24 of the firm's lawyers to partners, including: employee benefits partner Christina Cerasale in Chicago; and labor and employment partners Chantelle Egan in San Francisco; Kara Goodwin in Chicago; Christina Hendrickson in Chicago; Sharon Cook Poorak in Atlanta; John Quill in Boston; Courtney Stieber in New York; Megan Troy in Chicago; Simon Yang in Los Angeles.

 

 

Around the Water Cooler

>> A divided federal appeals court Wednesday issued a broad decision rejecting claims from a lawyer that he should be allowed as a job applicant to bring age-discrimination claims for an in-house position he was not offered. The en banc court, in a majority opinion written by Judge Michael Scudder, ruled against a lawyer named Dale Kleber. A team from Ogletree represented CareFusion, which turned down Kleber for a counsel post. The AARP Foundation Litigation represented Kleber. [NLJ]

>> Fast-growing Littler Mendelson found another right fit in Norway, its latest overseas destination, in 12-lawyer Oslo-based Homble Olsby. Littler added the 11-year-old labor and employment boutique to its global verein, gaining its first outpost in Scandinavia. The firm has expanded to France, the U.K., Italy, the Netherlands, and Belgium over the past three years. [The American Lawyer]

>> In a new policy dubbed “one for all,” Barnes & Thornburg is expanding its parental leave policy to cover all of its staff, not just its attorneys. The new policy provides 16 weeks of parental leave at 100 percent pay for all of the firm's employees, legal and nonlegal staff alike. [Law.com]

>> Lawsuits are piling up on behalf of federal workers forced to work without pay during what is now the nation's longest shutdown. Plaintiffs attorneys are fielding calls from thousands of workers and argue that forced work without pay is a clear violation of federal labor laws. [NLJ]

>> Meanwhile, “a new study estimated that workers affected by the shutdown will be owed $6 billion by the end of this week.” [The Washington Post]

>> “Glassdoor has become an important arbiter of employee sentiment in today's highly competitive job market. A Wall Street Journal investigation shows it can be manipulated by employers trying to sway opinion in their favor.” [WSJ]

>> NLRB general counsel Peter Robb is reportedly looking for a case to kill “Scabby the Rat,” the inflatable figure that often appears at protests. [BNA]

>> OSHA inspectors are now authorized by the Labor Department “to use camera-carrying drones as part of their inspections of outdoor workplaces.” [Cato Institute]

I'm Erin Mulvaney in Washington, 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.