Welcome to Labor of Law—I'm Mike Scarcella in Washington, and you can reach me at [email protected] and on Twitter @MikeScarcella. Thanks for reading!

DC Circuit Judge: Let's Talk About Independent Contractors

The Trump-era NLRB and U.S. Labor Department have taken positions boosting arguments from gig-economy companies that their workers are contractors, not employees. Now, there's a Trump-appointed judge who is looking to jump into that debate.

Judge Gregory Katsas (above), the former Jones Day appellate lawyer who's now sitting on the U.S. Court of Appeals for the D.C. Circuit, ruled last week with two colleagues that the facts of a case compelled a finding that the workers were not volunteers but, instead, employees.

But Katsas's concurrence came with a wrinkle. He wrote: “In an appropriate case, I would be open to the argument that workers like Rhea Lana's are not employees for a different reason: because they are independent contractors.”

Katsas suggested lawyers for Rhea Lana, a for-profit business that organizes consignment sales of children's merchandise, could have made an argument that their workers were, indeed, contractors.

“The lack of 'permanence or duration of the working relationship' weighs in favor of independent-contractor status,” Katsas wrote, quoting from a 2001 D.C. Circuit case Morrison v. Int'l Programs Consortium Inc. “Here, that consideration seems to favor Rhea Lana strongly. As the department's own investigator found, '[t]he persons in question work for relatively short periods of time at irregular intervals in between personal activities' and 'work 2 times per year at the most.'”

The D.C. Circuit, of course, is teeming with NLRB cases and Labor Department disputes, so the chances Katsas and his colleagues will get another opportunity to explore worker classification disputes are fairly high.

Meanwhile, in the gig ecoonomy…

>> Over in California, where worker classification disputes are playing out in the courts and in the legislature, CEOs of Uber and Lyft published a joint op-ed at the San Francisco Chronicle this week pledging they'll work with state lawmakers “to establish a commitment to driver pay and earnings transparency” if the state doesn't force the companies to deem their drivers as employees.

“Today in California, we have an opportunity to work with legislators and labor groups to find a different solution that preserves drivers' ability to work independently if they choose to do so while improving the quality and security of their work,” the executives wrote.

Labor leaders were unmoved. The California Labor Federation said: “We continue to believe that employee status is critical for gig workers and the future of our economy in California.”

When Machines Do the Hiring 

The fate of job applicants, real or theoretical, spurned by machine-learned bias has drawn wide interest in the legal field, my colleague Charles Toutant reports.

There's a debate among legal scholars about whether job applicants denied employment based on protected-class discrimination by a resume-reading artificial intelligence can find a remedy under existing laws.

Neither the disparate treatment nor disparate impact theories seem to bar discrimination from a machine, said Charles Sullivan, who teaches a course on employment discrimination at Seton Hall University School of Law in Newark. An algorithm that excludes women as seen by Amazon, or the employer that deploys it, “does not seem to have violated the law as the Supreme Court has declared it,” Sullivan wrote in the journal for Villanova University's law school.

“Part of the difficult task is always helping the judges to understand what the technology is and whether it's actually different than the cases that don't involve the technology,” said Sandra Sperino, who teaches employment discrimination law at the University of Cincinnati College of Law.

Around the Water Cooler…

>> Goldman Women in 14-Year Discrimination Fight Resist Arbitration. “Lawyers for the group argue that Goldman has waited too many years to now try to push them out of open court and into the closed-off system of arbitration. They cite their case's 755 docket entries, 376 discovery requests, 100 letters to the court, 44 motions, 33 days of depositions and 20 expert reports. Goldman said in a separate filing that arbitration is standard on Wall Street.” [Bloomberg]

>> As Walmart Turns to Robots, It's the Human Workers who Feel Like Machines. “But the rise of the machines has had an unexpected side effect: Their jobs, some workers said, have never felt more robotic. By incentivizing hyper-efficiency, the machines have deprived the employees of tasks they used to find enjoyable. Some also feel like their most important assignment now is to train and babysit their often inscrutable robot colleagues.” [Washington Post]

>> Facebook Lawyer Joins Bias Class Action Against Jones Day. A former Jones Day associate who is now an in-house attorney for Facebook has joined a gender bias lawsuit against Jones Day, making her the third named plaintiff in the case. The lawyer, Jessica Jardine Wilkes, was an associate at Jones Day from October 2014 to September 2016, and is now product counsel at Facebook. [Law.com]

>> Denver Law Sued for Underpaying Female Professor—Again. “The University of Denver Sturm College of Law has been sued for a second time for allegedly paying women law professors less than their male colleagues. Rashmi Goel, an associate law professor at the school since 2002, on Monday filed a gender-based pay and race discrimination suit against the law school.” [Law.com]

>> New Evidence of Age Bias in Hiring, and a Push to Fight It. “The problem is getting more scrutiny after revelations that hundreds of employers shut out middle-aged and older Americans in their recruiting on Facebook, LinkedIn and other platforms. Those disclosures are supercharging a wave of litigation. But as cases make their way to court, the legal road for proving age discrimination, always difficult, has only roughened. Recent decisions by federal appeals courts in Chicago and Atlanta have limited the reach of anti-discrimination protections and made it even harder for job applicants to win.” [NYT]

>> Trump Contractor Watchdog Wants Closer Tabs on Career Attorneys. “The chief of the Labor Department's contractor watchdog wants to take a larger role in the agency's litigation against businesses accused of pay discrimination, leading to clashes with career attorneys who handle those cases.” [Bloomberg Law]

>> Rejected Google Job-Seekers Clear Hurdle to Sue Over Alleged Liberal Bias. “White conservative males who allege that liberal bias at Google Inc. doomed their chances of getting hired by the tech giant cleared the first hurdle to proceed with their lawsuit. A California state judge on Thursday tentatively rejected Google's request to dismiss claims brought by two men who say they were turned down for jobs because of their race, gender—and politics. Still, the judge cautioned it won't be easy for the men to prevail on their 'novel' theory that Google is biased against 'political conservatives'—a term the company argues is too vague to support a class-action suit.” [Bloomberg] More here at Law.com: Google Can't Dodge Class Action Lawsuit Brought by Conservative Job Applicants

>> Whistleblowers' Rights Could be at Risk Under Trump's New Labor Board. “An equally consequential workers' rights case, attracting far less notice, is awaiting a ruling by the full five-member NLRB. It involves free-speech rights that, until now, seemed securely protected by the National Labor Relations Act,” Frank LoMonte, a media law professor, writes in this new commentary. [CNN]

>> Are Employment Contracts With Unenforceable Terms Unethical? “Most lawyers would balk at fulfilling such a blatantly illegal request. Unfortunately, for years, many lawyers have done something very similar: They've routinely included clearly illegal or unenforceable terms—like bogus noncompete agreements—in worker contracts,” write Terri Gerstein, director of the Project on State and Local Enforcement at Harvard Law School's Labor and Worklife Program, and Brian Shearer, legal director for Justice Catalyst Law. [NLJ]

Who Got the Work

>> “The American Institute of Architects announced Wednesday that it will partner with former Attorney General Eric Holder and his law firm, Covington & Burling, in a sweeping review of how it gives out its awards and honors. The AIA, which bestows the prestigious annual Gold Medal and a number of other major prizes, said Covington's review will deliver a set of “actionable recommendations” for improving diversity in the awards selection process,” according to Architectural Digest.

>> The firms Cicchiello & Cicchiello and Kotchen & Low have filed a class action complaint in Hartford federal district court that accuses the management consultancy Accenture PLC of employment discrimination. The company did not immediately comment on the claims. The Connecticut Law Tribune has more here.

>> DLA Piper lawyers Harriet Lipkin and Stanley Panikowski are representing Palms Casino Resort in an NLRB case now at the U.S. Court of Appeals for the D.C. Circuit. David Habenstreit, acting deputy associate general counsel, is representing the labor board.

>> Wigdor LLP partner David Gottlieb is representing William Littleton in a suit against Goldman Sachs alleging sexual orientation bias, my colleague Colby Hamilton reports at Law.com. Littleton is a former Goldman Sachs vice president who worked in the product strategy group. Goldman Sachs said the investment bank “has a sustained and proven commitment to diversity, and we are proud of the vibrant and diverse LGBTQ community at the firm.” The Financial Times has more here, and Bloomberg has more here.

>> Eric Simon, a Jackson Lewis principal in New York, and Dallas-based Littler Mendelson shareholder Arthur Carter argued for DirectSat USA LLC and DirecTV, respectively, in a union fight in the U.S. Court of Appeals for the D.C. Circuit. The appeals panel on June 7 rejected the companies' petitions for review and approved the National Labor Relations Board's cross-application for enforcement. NLRB attorney Gregoire Sauter represented the agency.

Notable Moves & Announcements

• John Scalia, son of the late Justice Antonin Scalia, returned to Greenberg Traurig. The firm announced that he rejoined as a shareholder in its Northern Virginia office, where he will work in the firm's global labor and employment practice. Scalia is reuniting with Greenberg after extended sojourns at Littler Mendelson and Pillsbury Winthrop Shaw Pittman, my colleague Ryan Lovelace reports.

• Baker & Hostetler has brought on Michael Chamberlin as a partner in the labor and employment group in Los Angeles. He represents employers in individual and class action litigation, and advises clients on employee and union relations matters. Chamberlin previously was a partner at Winston & Strawn, where he co-chaired the firm's Los Angeles labor and employment practice.

• Fisher & Phillips has hired Hassan Aburish in the San Francisco office. Aburish's experience includes representing employers in class action, discrimination, retaliation, harassment, and wrongful termination matters. He previously was at Freeman, Mathis & Gary.

• Alan Bayless Feldman has joined Jackson Lewis P.C. in Phoenix as a principal. He joins the firm from Steptoe & Johnson LLP, where he focused on employment law and labor relations.

• Scott Green has joined Goldberg Segalla as a partner in the firm's employment and labor practice group in Garden City and Manhattan. He was previously at Rivkin Radler in Uniondale, New York.

• Philadelphia labor, employment and workers' compensation law firm Willig, Williams & Davidson said Elizabeth Deegan has joined the firm.