Happy Thursday, and welcome to Labor of Law. The EEOC now will return to a three-member quorum on the confirmation of former Burlington Stores general counsel Janet Dhillon. The D.C. Circuit just docketed the EEOC's appeal in the pay-data collection case in Washington—we'll closely track developments. Will Dhillon's arrival change the agency's course on pay-data? Plus: Washington state passed a law limiting noncompetes; Uber faces a growing arbitration docket; the new Littler Mendelson employer survey is out, and much more. I'm Mike Scarcella in Washington and you can reach me at [email protected] and on Twitter @MikeScarcella. Thanks for reading!

 

 

EEOC Appeals Pay-Data Collection Order

The Justice Department last week filed its notice of appeal challenging U.S. District Judge Tanya Chutkan's pay-collection rule, and we were the first to post on the new development. For planning purposes: the EEOC says the appeal, to the D.C. Circuit, will not affect the Sept. 30 deadline for employer compliance with the new data collection order. The appeals court formally docketed the case Wednesday afternoon (No. 19-5130).

One big open question: Will the confirmation of Janet Dhillon change the EEOC's course? The Justice Department late Wednesday teed up that issue in a new court filing. The government told Chutkan (above): “If, once a quorum is restored, the Commission takes action related to the Component 2 data collection that is the subject of this litigation, we will promptly notify the court.” Robin Shea of Constangy, Brooks, Smith & Prophete writes: “The appeal has no immediate impact on Judge Chutkan's orders. As the EEOC correctly says, those orders are still in effect. If the government wants to stay Judge Chutkan's orders until the D.C. Circuit has a chance to rule in the appeal, it would have to file a motion with the D.C. Circuit. The plaintiffs would no doubt vigorously oppose such a motion. But IF the motion were filed, and IF the D.C. Circuit granted it (no telling when that would be), then and only then could employers stand down. Too many 'ifs.' Prudent employers should prepare for the worst and continue gathering their data.”

Indeed, law firm advisories in the run-up to the EEOC's appeal almost universally said covered companies should not assume Chutkan's order will be put on hold.

>> In an April 26 client advisory, Morgan, Lewis & Bockius partners W. John Leein Philadelphia and Sharon Perley Masling in Washington said “employers should start thinking about what processes they need to put in place in order to be ready to report the pay and hours data, as well as the implications of submitting such data.” They added: “ If the appeals court stays the judge's order and reinstates OMB's original stay, then employers would not have to report the data until the appeal was resolved. There are no guarantees, however—either with respect to whether DOJ will file an appeal or whether the appeals court will grant a stay.”

 

 

What Littler's New Survey Says About AI

Littler Mendelson's eighth-annual annual employer survey is out this week—and more than 1,300 in-house counsel, human resources professionals and executives responded. Read the full survey here. The survey concluded that although companies are starting to use AI and analytics “few are seizing on the full range of opportunities presented by these emerging technologies, nor are they sufficiently preparing for the impact on the workforce.”

“Respondents report using AI or analytical tools for a range of recruiting and hiring applications, mainly screening applicants (25 percent) and unlocking difficult-to-reach candidate pools (11 percent). As companies continue to ask HR departments to do more with less, the potential for AI to help deliver on this mandate—particularly in the time-consuming areas of recruiting and hiring—grows more enticing.

Aaron Crews (at left), Littler's chief data analytics officer, said in a statement: “HR is ripe for the implementation of AI-based tools, given that companies have troves of existing data surrounding job postings, applications, promotions and other decisions to train algorithms.”

The Wall Street Journal has a new report up that employers (and workers) might want to think about: “Automating Workplace Tasks Can Backfire If Employees Shun the Technology.” A snippet: “For digital-workplace deployments to succeed, employees need to embrace these tools as part of their jobs: 'Worker buy-in is incredibly important,'” Omar Tawakol, chief executive and founder of Voicea, told the Journal.

Speaking of efficiencies: Littler Mendelson on Thursday unveiled a new technology-based platform, Littler onDemand, to give clients an alternative to increasing the size of their in-house legal departments, my colleague Dan Packel reports. The platform uses technology and a team of dedicated ”on demand” counsel to give clients real-time answers to legal questions. (Read more here at Law.com.)

Several other highlights from Littler's report:

>> “The perceived impact of various regulatory issues at the federal level remained relatively unchanged from last year's survey, with one exception: The number of respondents anticipating a moderate or significant impact from the ACA declined by 10 percentage points from the 2018 survey.”

>> “Employers expect the EEOC to continue to be aggressive in its enforcement efforts. The top three areas where respondents expect an increase in workplace discrimination claims over the next year include harassment claims (61 percent), retaliation against employees who file discrimination or harassment claims (49 percent) and equal pay (47 percent).”

>> “Employers are taking greater action across the board to curb sexual harassment in their workplaces compared to last year's survey, including providing additional training to supervisors or employees (63 percent in the 2019 survey, up from 55 percent in 2018), updating HR policies or handbooks (51 percent in 2019, up from 38 percent in 2018) and more proactively addressing complaints and potential misconduct (37 percent in 2019, up from 29 percent in 2018). In addition, most employers are taking action to address gender pay equity, with 48 percent auditing salary data and pay practices and 24 percent revising hiring practices.”

 

 

Who Got the Work

>> Seyfarth Shaw partner Joshua Ditelberg is counsel to XPO Logistics Freight, formerly known as Con-Way Freight Inc., in a new petition in the D.C. Circuit challenging a National Labor Relations Board ruling. The board ordered the company to cease and desist from refusing to recognize and bargain with the International Brotherhood of Teamsters, Local 63. Read the petition here.

>> Nimra Azmi, a staff attorney at Muslim Advocates, is representing three Somali women who are accusing their employer, Amazon, of creasting a hostile workplace and retaliating against them for raising concerns, according to a New York Times report. “We think an E.E.O.C. investigation is a key part of starting the process of holding Amazon accountable,” Azmi said. An Amazon spokeswoman told the Times: “Diversity and inclusion is central to our business and company culture, and associates can pray whenever they choose.”

>> The D.C. firm Alan Lescht & Associates is representing a former congressional aide named Kristie Small in a pregnancy discrimination suit against U.S. Rep. Henry Cuellar, D-Texas. Read the complaint here in Washington's federal trial court. Small, former deputy chief of staff, alleges Cuellar's “conduct had a devastating impact” on her life. Cuellar's office, responding to Small's administrative complaint last year, defended her termination: “The office values its employees and conducts all personnel matters in compliance with the congressional Accountability Act and applicable House Rules. All actions taken with respect to Ms. Small's employment were in compliance with the law and House Rules.” My colleague Angela Morris has more here on the suit.

>> A Manhattan federal judge has ordered Barnes & Noble to pay a portion of its ousted CEO's legal fees. Demos Parneros is represented by the firm Vladeck, Raskin & Clark—read the fee motion here—and a team from Paul, Weiss, Rifkind, Wharton & Garrison represents the bookseller. The company opposed the push for advancement of fees. Publishers Weekly has more here, and my colleague Max Mitchell has more at Law.com.

 

 

Around the Water Cooler

>> Uber's Arbitration Addiction Could Be Death by 60,000 Cuts. “The number of U.S. drivers who have filed arbitration demands against Uber has swelled to more than 60,000, according to the company's prospectus. The figure surprised legal experts, who said resolving that many cases would take decades and cost Uber at least $600 million—with no end in sight.” [Bloomberg]

>> Insubordination Is Good for the Workplace. “Workplaces function better, business ethicists point out, when they make room for a certain amount of defiance. 'I think you always have to make independent judgments about orders that come down to you,' University of California, Berkeley, psychology professor Charlan Nemeth said.” Former White House counsel Donald McGahn reportedly played a role in resisting President Trump's efforts to fire the special counsel, Robert Mueller. [The Atlantic]

>> Amazon Fired These 7 Pregnant Workers. Then Came the Lawsuits. “CNET reviewed seven lawsuits against Amazon filed by pregnant warehouse workers who were fired over the last eight years and who've alleged that the company failed to accommodate their needs. The requests included longer bathroom breaks and fewer continuous hours on their feet, according to the lawsuits, but in all of the cases the expectant mothers were fired after telling their managers they were pregnant. Six of the cases were settled out of court.” [CNET]

>> Trump's Top Labor Lawyer Seeking Pro-Union Findings to Overturn. “The National Labor Relations Board's general counsel [Peter Robb, at left] is on pace this fiscal year to revive seven times more unfair labor practice cases that were brought against unions than against employers, driven in part by directives he's issued calling for stricter rules for organized labor, according to a review of agency records and interviews with attorneys.” [Bloomberg Law]

>> 9th Circuit: 'Dynamex' Worker Classification Test Applies Retroactively. “Given the strong presumption of retroactivity, the emphasis in Dynamex on its holding as a clarification rather than as a departure from established law, and the lack of any indication that California courts are likely to hold that Dynamex applies only prospectively, we see no basis to do so either,” wrote U.S. District Judge Frederic Block of the Eastern District of New York, sitting by designation on the Ninth Circuit.” Here's a link to the ruling. [The Recorder]

>> Washington State Passes Law to Limit Noncompete Agreements for Employees. “Scheduled to take effect Jan. 1, the new law would prohibit all noncompetition agreements for employees whose W-2 earnings are less than $100,000 annually, and for independent contractors paid less than $250,000 per year. Those amounts would be adjusted annually for inflation.” [Law.com]

>> Arbitrator Slaps Ex-Apollo Global Employees' Use of Confidential Information. “A New York City-based arbitrator has ordered two former employees of the Apollo Global Management LLC to pay a combined $1.15 million in damages after finding that they had misused the public equity giant's confidential information while seeking to start their own firm. The strongly worded ruling from JAMS arbitrator Mark E. Segall found that Imran Siddiqui, a former managing director at Apollo, had breached a prior settlement agreement with the company and improperly recruited his associate, Ming Dang, to aid him in starting Caldera Holdings LLC.” [New York Law Journal] Read the arbitration decision here.

>> Judge Throws Out Former In-House Lawyer's Age Bias Suit Against Accenture. “A federal judge in Maryland has tossed a former Accenture in-house lawyer's age discrimination suit against the global management consulting and professional services firm, ruling that the man was fired because of poor communication skills and aggressive emails to his boss.” Read the ruling from U.S. District Judge Paula Xinis of the District of Maryland. [Law.com]

>> Google Workers Want to Outlaw Mandatory Arbitration. Here's Why This Matters. “Arbitration's spread has become controversial. Many on the left criticize it, while many conservatives support it. So it may be surprising that liberal reformers were the first to make arbitration popular.” [The Washington Post]

 

 

Notable Moves & Announcements

>> Former Burlington Stores general counsel Janet Dhillon (above) was confirmed Wednesday afternoon as EEOC chair. Dhillon's arrival establishes a three-member quorum, the first since January. The other commissioners are Victoria Lipnic and Charlotte Burrows. “Two commission seats remain vacant, but Democrats are said to be narrowing down their preferred picks for the openings. The Hispanic National Bar Association recently endorsed the Office of Special Counsel's Louis Lopez,” Bloomberg Law reports.

>> Morgan, Lewis & Bockius is adding four lawyers in Dallas, including two partners, all coming from Bracewell. Among the moves: Robert Sheeder, a labor and employment litigator, joined the firm Wednesday as a partner in Dallas.

>> Reed Smith has hired Jami Segota as counsel in the firm's labor and employment practice. Segota rejoins the firm from Ricoh USA, where she was serving as senior vice president and general counsel. Segota earlier was an associate and counsel at Reed Smith.

>> Ogletree Deakins said it is bolstering its European presence with the addition of François Millet as a partner in the firm's Paris office. Millet joins from Neo Avocats, where he was a founding partner.

>> Littler Mendelson has added William Vail Jr. as special counsel in the firm's Atlanta office. Vail joins from the home health and hospice provider Kindred at Home, where he had served as division vice president and deputy chief litigation officer.

>> Stroock & Stroock & Lavan has hired David Olstein as a partner in the firm's employee benefits, executive compensation and ERISA group. Olstein arrives from Groom Law Group Chtd.