Happy post-May Day, and welcome to Labor of Law. Jeopardy! might need to make James Holzhauer an employee to end his winning streak—go, James, go! Gig-economy companies aren't eager to turn their earners into employees—scroll down for some snap analysis of a new DOL opinion letter. Plus: We catch up with plaintiffs lawyer David Sanford; Morgan Lewis has posted a Q&A with Obama-era EEOC commissioner Chai Feldblum; and Ogletree snags Greenberg Traurig's L&E co-chairman. I'm Mike Scarcella in Washington and you can reach me at[email protected] and on Twitter @MikeScarcella. Thanks for reading!

David Sanford Q&A: Major Litigation & #MeToo

“Sanford Heisler has become a frustratingly familiar presence to defense-side firms like Gibson Dunn in recent years, thanks to a string of lawsuits the firm has brought alleging gender discrimination against women partners and associates in Big Law,” my colleague Ryan Lovelace recently wrote over at Law.com.

David Sanford (at left), chairman and co-founder of Sanford Heisler Sharp, recently spoke with us about his practice, big settlements and #MeToo. Here are some highlights of the conversation, edited for length and clarity:

Reviewing the landscape: “I think right now we are in a very different place. In October 2017, the news broke regarding Harvey Weinstein that gave rise to the #MeToo social media campaign. It pushed us to reflect on where we are in society in respect to gender relations in general and sexual assault in particular. in September 2017, approximately 2,000 people contacted [our] firm. In 2018, the number doubled. We take about 100 cases a year. In 2017, we took 5 percent and in 2018, we only took 2.5 percent. The number accepted [was] the same but [the] intake doubled.”

Picking cases: ”I review all the intakes done by the legal assistants nationwide. The cases we take have to fit in our social-justice-mission-driven firm. They have to fit within the context of social justice and the law. We look at the individual. We make a judgment about credibility in assessing the client. We have to evaluate whether the client is likable and believable. If the jury will like and believe, it's more likely we'll win. If neither is true, it will be a more difficult challenge.”

On #MeToo: ”There has been a focus on the treatment of women, in the employment context or not. That's a good thing. We are only a year and a half into the #MeToo movement. We will know more about [the] impact on the law, especially with verdicts, in the next five years. I think it's too early to tell. It's certainly true there's more comment and writing and thought given to the issue. Because of the attention to the issues, it's more likely that juries will be mindful of the background and societal issues and consider the entire context when they are in the jury room.”

New DOL Opinion Letter Bolsters 'Contractors' (Who Punch Their Own Clock)

The U.S. Labor Department's new opinion letter declaring certain workers for an unidentified gig-economy company to be independent contractors and not employees is getting a lot of attention—and we'll have to see how and where the agency's position, and its new six-factor test, starts showing up in disputes. My colleague Cheryl Miller wrote here on the issues. Read the full opinion letter here. The New York Times has more here.

Some of the early commentary:

>> Harvard Law School's Benjamin Sachs, writing at the blog On Labor: “This test has become so indeterminate—so chock full of factors and subfactors and 'other [unnamed] factors'—that it does not even appear to constrain decisionmakers. The result is that the determination of who is an independent contractor and who is an employee—the primary legal question at the heart of debates over the gig economy and much of the labor market more broadly—is becoming an entirely political question. This opinion letter ought to be understood that way: a political determination, made by the Trump Department of Labor, to treat gig workers as independent contractors.”

>> Morgan Lewis partner Michael Puma said in an email: “This is a continuation of the trend coming out of the DOL in recent years that is giving greater flexibility to companies with nontraditional relationships with workers. The previous guidance from 2015 under the Obama administration was advocating for a more narrow view on what was considered an independent contractor and advocating that most workers were employees. Now, this new opinion letter gives a fair amount of freedom on how to engage workers outside of the normal employee models. While it's not a binding regulation, the guidance could be persuasive to courts.”

>> Richard Meneghello at Fisher & Phillips said in a blog post: “While not a magic bullet that will cure all that ails the modern gig economy industry, today's development is a welcome one—and a preview as to how today's USDOL will treat misclassification concerns that fall into their laps from gig economy (and other) businesses. The next step is for the agency to take formal action with respect to investigatory decisions based on this same reasoning, or possibly issue guidance or formal regulations along these same lines.”

Meanwhile, Around the Water Cooler

• The Supreme Court's Anti-Worker Rulings Are So Routine Now That We Hardly Notice Them. Big Mistake. “A distinct pattern has emerged among the court's 'partisan' rulings, where the Roberts Five render a 5–4 decision attracting no support from the more liberal justices. This one comes at the expense of American workers.” [Slate] Whitehouse, writing recently at the NLJ, described what he called a “crisis of credibility” at the high court.

• How Amazon Automatically Tracks and Fires Warehouse Workers for 'Productivity.' Documents obtained from the National Labor Relations Board, where Amazon was represented by Morgan, Lewis & Bockius, “show those productivity firings are far more common than outsiders realize” and also reveal “a deeply automated tracking and termination process.” [The Verge]

• Former EEOC Commissioner on What's Next for Employers in Wake of the #MeToo Movement. “When employers consider the costs of workplace harassment, they often focus on direct legal costs. But as we described in an article for Harvard Business Review, legal costs are just the tip of the iceberg. Employers face problems with productivity and job turnover, and many of those problems can be traced back to harassment in the workplace,” Morgan Lewispartners Sharon Masling and Chai Feldblum (at left), a former Obama-era EEOC commissioner, say. [Morgan Lewis]

• Lyft Just Lost Its Lawsuit Against New York City's Minimum Wage Rule for Drivers. “In her decision, Judge Masley said that Lyft's argument that the rules will give Uber a competitive advantage lacks any factual basis.” A spokesperson for Lyft said in a statement that the “rules have hurt earning opportunities for drivers, and will diminish competition that benefits drivers and riders.” [Business Insider]

• The Productivity Pit: How Slack Is Ruining Work. “An increasing emphasis on new technology to moderate our workdays isn't necessarily making our work better or making us more productive. If wielded poorly, it can even make it worse.” [Vox]

• Why People Stay With the Same Company for Decades. “A new piece of research from the University of California, Berkeley and Stanford business school, has looked into what helps people fit into companies and what makes them stay.” [Financial Times]

• Women Wanted: Blue-Collar Field Finds New Workforce. “A number of factors are driving the trend, including companies broadening recruiting efforts in a tight labor market to workers being drawn by better-paying jobs to women recognizing they won't be alone. The increase has been especially pronounced in transportation and material-moving, a field that includes truck drivers, delivery people and warehouse workers.” [The Wall Street Journal]

• Plaintiffs Firm Tossed From High-Profile Uber Case Gets New Hope for Return. The plaintiffs firm Keller Lenkner, disqualified from handling a high-profile lawsuit against Uber Technologies, got a step closer to being let back into the case Wednesday when a federal appellate court asked the ride-hailing company to weigh in on the firm's appeal. Two judges for the U.S. Court of Appeals for the Ninth Circuit asked Uber's lawyers to address arguments raised by the law firm, which was knocked out of the case in January due to one of the firm's lawyer's prior work alongside Uber on cases during an earlier stint as the top appellate counsel at the U.S. Chamber of Commerce. [The Recorder]

• Big Law Pay Equity Gets Closer Scrutiny by Small Labor Agency. “A small Labor Department agency with sizable oversight is looking closely at Big Law firms like Morgan Lewis & Bockius, Fox Rothschild, and Paul Hastings, as part of its mission to address compensation and promotion practices in the legal industry.” [Bloomberg Law]

Who Got the Work

>> Mark London and Lance Robinson of Washington's London & Meadrepresent the former chair of Dentons government contracts government contracts group, Jessica Abrahams, who claims in a lawsuit that the megafirm owes her close to $400,000 and that it bad-mouthed her to clients when she left the firm, my colleague Ryan Lovelace reports at Law.com. Dentons counters that Abrahams left with nearly $2 million in unpaid billings when she departed for Drinker Biddle & Reath a year ago, calling her suit a “diversion” from her own failures to meet her commitments to the firm.

>> A team from Akin Gump Strauss Hauer & Feld—including partner Robert Lian Jr., who leads the firm's labor and employment practice—represented Corrections Corporation of America in an action at the U.S. Labor Department Administrative Review Board. The panel recently upheld an administrative law judge's ruling denying a request from the United Government Security Officers of America for a variance from the collectively bargained wages for detention officers. Robert B. Kapitan was counsel to the union.

>> Nancy Saltzman (at left), former general counsel and executive vice president of ExlService Holdings Inc., filed suit Monday against the company and its senior officers alleging she was fired after complaining about sexual discrimination. Saltzman is represented by Russell Kornblith, managing partner of Sanford Heisler Sharp's New York office. The company had not immediately responded to messages seeking comment.

>> David Nagle, a Jackson Lewis principal in Richmond, argued for Wyndham Vacation Resorts Inc. in the U.S. Court of Appeals for the Sixth Circuit in a collective action from sales employees who alleged violations of the Fair Labor Standards Act. Martin Holmes of Dickinson Wright in Nashville argued for the employees. The appeals court affirmed in part and reversed in part. “The district court did not abuse its discretion in certifying the collective action as to the in-house and front-line salespeople. Yes, the job titles differ. But the roles require identical tasks, just aimed at different customers,” the court said. Read the ruling.

>> A U.S. Labor Department administrative law judge this week dismissed a SOX whistleblower case against Vodafone US Inc. Bronwyn Pepple, co-managing director of Lewis, Bess, Williams & Weese, in Denver, Colorado, was on the team defending Vodafone. Monique Miles, managing shareholder of Old Towne Associates P.C., in Alexandria, Virginia, represented the estate of the deceased employee.

>> Gibson, Dunn & Crutcher, including partner Robert Blume in Denver, represented Keypoint Government Solutions LLC in a False Claims Act whistleblower case in the U.S. Court of Appeals for the Tenth Circuit. The court on Tuesday upheld the dismissal of a retaliation claim brought by a senior quality control analyst, Julie Reed, who was represented by Richard Condit of Mehri & Skalet. But the court revived qui tam claims. “We disagree with the court's conclusion that Ms. Reed's allegations do not materially add to the public disclosures, such that she did not qualify as an original source,” the panel said. Read the opinion here.

Notable Moves & Announcements

Peter Zinober is joining the Tampa office of Ogletree Deakins. “The nationally recognized attorney will assist the firm's executive committee with expansion strategies in Florida and other key markets,” the Tampa Bay Business Journal reports. Zinober formerly was the labor and employment co-chairman at Greenberg Traurig. My colleague Dylan Jackson has more here.

Melissa Peters has joined Littler Mendelson's Walnut Creek, California, office as special counsel in the workplace safety and health practice group. Peters was previously staff counsel at the California Department of Industrial Relations' Division of Occupational Safety and Health.