Welcome to Labor of Law, our weekly summary of news and trends affecting the L&E community. On the clock this week:

• Early commentary on Eugene Scalia… including… The Onion • Monitoring social media? Some considerations • Headlines: Workplace surveillance evolves; emoji communication and lots more • Moves & Announcements: Mark Gaston Pearce will lead new Workers' Rights Institute

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

Updated at 740 p.m.

Gibson Dunn's Gene Scalia, 'Warrior Against Overreaching Regulations'

The nomination of Eugene Scalia as Labor Department secretary is expected to head to Capitol Hill soon, putting in focus his career as a Gibson, Dunn & Crutcherregulatory partner and earlier as the agency's solicitor. Scalia co-chairs the firm's administrative law and regulatory practice group.

• Scalia's co-chair in that practice, Helgi Walker, had no comment on how his departure would affect management of the group or its business, for good or for ill, my colleague Ryan Lovelace reports. “But it is clear it would be felt within the administrative law and regulatory team and beyond,” Lovelace writes. “In addition to the labor and employment group he once led, Scalia was also a member of Gibson Dunn's appellate and constitutional law practice group and has served on the firm's executive committee and partnership evaluation committee.”

• Politico has a new piece up today: “Scalia's challenge: Fiery old writings in a new era of #MeToo.” Helgi Walker is quoted: “The confirmation process has gotten so silly that people will make something out of the most ridiculous things and attempt to block a nominee, but I will tell you that I know Gene Scalia would never tolerate sexual harassment in the workplace.”

• Lawyers from the management-side firm Fisher Phillips offered a predictionabout Scalia if he's confirmed: “Scalia will aggressively battle against intrusive and overreaching regulations that hamstring the country's employers, and will quickly endear himself to the business community.”

• Cheryl Behymer, co-chair of the Fisher Phillips pay-equity practice group, has her eyes on what Scalia might have to say about the EEOC's move to broaden its pay-data collection. “If there has ever been a more burdensome and overreaching regulation than the beefed-up EEO-1 reports, I haven't seen it in my lifetime. If Scalia could somehow navigate a stay of this requirement, he would immediately endear himself to the business community.”

• “I would never say he wasn't qualified to be labor secretary, he has knowledge of the area,” Patricia Smith, former Obama-era Labor Department solicitor, toldBloomberg Law. “I am concerned that given his record, it's going to become the Department of Commerce as opposed to the Department of Labor.” Smith told The Wall Street Journal: “I would say that Gene, in my time as solicitor, was one of the two or three most aggressive attorneys when it came to attacking DOL regulations.”

• Back in January, Scalia met up with the now-departed Labor Secretary Alex Acosta for dinner, according to Labor department calendars. Acosta's other dinner guests have included Justice Samuel Alito Jr.—for whom Scalia clerked on the Third Circuit—and Michael Chertoff, senior counsel at Covington & Burling.

>> More reading: Eugene Scalia Has Defended Wall Street, Walmart and SeaWorld. Now He's Trump's Pick for Labor Secretary (Washington Post); Trump Labor Pick Has Defended Corporations, and One Killer Whale (NYT). And for fun, The Onionweighs in: Trump Picks Eugene Scalia—You Know, Antonin's Boy—To Lead Labor Department

Monitoring Employees' Social Media Posts

More employers are mining workers' social media accounts as a proactive approach to spot potential things that violate company policy. “I think [this] will be more common going forward with employers because of the significant publicity,” Mayer Brown litigation partner Richard Nowak tells my colleague Victoria Hudgin.

• Employment lawyers generally caution against targeting specific employees, to minimize claims of discrimination.

• Jonathan Spitz, the Jackson Lewis principal and co-leader of the firm's labor and preventive practices group, advises: “It's one of those things that is easy for an employer to say, 'I'm a private employer [and] they have no First Amendment rights,' which is true but it's not so easy because so many statutes could be implicated and typically employees are getting upset about something related to the workplace.” She added: “If you are going to monitor social media, you should have an evenhanded system.”

Around the Water Cooler: Labor Headlines

>> Yes, You Actually Should Be Using Emojis at Work. “Companies and teams often have their own cultures of emoji use, a splintering of communication methods that is only enhanced by the flexibility of this visual medium. Teams are going beyond just using reacjis and emojis to express tone, creating what is essentially a custom pictographic language, as potentially impenetrable to outsiders as Viking runes.” [WSJ]

>> The New Ways Your Boss Is Spying On You. “It's not just emails that are being tallied and analyzed. Companies are increasingly sifting through texts, Slack chats and, in some cases, recorded and transcribed phone calls on mobile devices.” More from the report: “Some executives and researchers warn that artificial intelligence in the workplace and natural language processing technology is still evolving and the data employers can capture paints only a partial picture of a worker's day or relationships. While it's easy to identify joy or anger, detecting more nuanced emotions is difficult.” [WSJ]

>> When the Law Says Using Marijuana Is O.K., but the Boss Disagrees. “The relatively rapid acceptance of marijuana use in the United States has lawmakers and employers grappling with ways to adjust hiring rules.” [NYT]

>> Law Firms Fill Void Left By Lawmakers in AI Discrimination Space. “Big Law firms are gearing up for potential discrimination lawsuits, resulting from inherent bias in artificial intelligence tools used by employers. Since March, both Paul Hastings and DLA Piper have launched practices focused on artificial intelligence, while other firms like Littler Mendelson, Fisher Phillips, and Proskauer Rose have partners well-versed in the developing technology and its risks.” [Bloomberg Law]

>> California High Court Will Rule If Gig Case Dynamex Is Retroactive. “The Ninth Circuit Court of Appeals in May said that Dynamex applies retroactively. But on Monday, the appeals court issued an order withdrawing that previous decision and said it would ask the state Supreme Court to decide whether its own ruling applied retroactively.” [Los Angeles Times] Plaintiffs lawyer Shannon Liss-Riordan told my colleague Ross Todd at Law.com: “I look forward to the Supreme Court taking on this case and definitively putting this retroactivity question to rest.”

>> Trump Administration Asks Court to Let It Restrict Federal Unions Now. “At issue are three executive orders issued in May 2018 that would, among other things, limit the topics on which bargaining will be held, set time limits on negotiations and significantly reduce 'official time,' which is paid time that employees may use for certain union-related purposes. The orders also would speed up in several ways the processes for disciplining federal employees, including restricting their chances to improve after being given notice of potential discipline based on their performance.” [The Washington Post]

Who Got the Work

>> A team from Jackson Lewis, including Douglas Hoffman, represented Sodexo Inc. in a case in the U.S. Court of Appeals for the First Circuit over alleged violations of the Massachusetts Tips Act. The plaintiffs, whose legal team included Edward Prisby of Kajko, Weisman & Colasanti, appealed summary judgment rulings. The appeals court this week ruled for Sodexo without reaching the merits of the class certification issue.

>> David Sanford of Sanford Heisler Sharp and Merle Joy Turchik represented female deans of the University of Arizona in settling a gender discrimination suit. Robert Jones, Monica Ryden, Victoria Chavey of Jackson Lewis represented the Arizona Board of Regents.

>> The California Supreme Court this week largely turned back an attempt by cable news outlet CNN to wield the state's anti-SLAPP statute to knock out a former newsroom employees' discrimination lawsuit. Adam Levin of Mitchell Silberberg & Knupp argued for CNN. Jill McDonnell of Shegerian & Associates argued the plaintiffs.

Notable Moves & Announcements

>> Former Obama-era National Labor Relations Board Chairman Mark Gaston Pearce (above) will be executive director of Georgetown Law's new Workers' Rights Institute. “Our purpose will be on organizing legal and policy initiatives through the engagement of students and the collaboration with legal, academic and community resources to empower and raise the standards of the undisturbed, diverse community of low-income workers, while also building workers' collective power in the workplace and in their communities,” Pearce told the National Law Journal's Sarah Tincher.

>> Longtime Reed Smith employment partner Karl Fritton has left the firm for Littler Mendelson in Philadelphia, my colleague Dan Packel reports. Fritton spent the last 23 years of his career at Reed Smith, including a stint as the leader of the firm's labor and employment practice group. He joined Littler as a shareholder Monday. “What was attractive about Littler was the strength and breadth and depth of their labor and employment practice around the country,” he said.

>> Ogletree Deakins has hired ERISA litigator Jenny Wang in the firm's Orange County, California, office. Wang joins Ogletree from Hinshaw & Culbertson.

Correction: An earlier version of this post misidentified the last name of the newly departed labor secretary.