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

• EEOC files opening brief fighting pay-collection order
• US Labor Dept. review board rules for NYC subway whistleblower
• Headlines: Workplace claims against Ohio judge revived; Amazon’s “Twitter army”
• Moves & new hires: Jackson Lewis’ Charlotte office

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

DOJ Says Judge In Pay-Data Case ‘Plainly’ Exceeded Authority

As the U.S. Justice Department mounts its challenge to the reinstatement of the Obama-era pay-data collection rule, companies still face a Sept. 30 deadline to comply with the new reporting requirements.

From a Wall Street Journal report this week: “The new mandate adds to pressure that U.S. employers already face from lawmakers, workers and investors to address discrepancies in the way women and minorities get paid. This summer, New Jersey and Illinois joined dozens of other cities and states that have banned hiring managers from asking how much money a job applicant makes, a move that proponents say can help narrow gender and racial wage gaps from a previous role.”

US Justice Department lawyers are appealing U.S. District Judge Tanya Chutkan‘s reinstatement of the pay rule, which requires companies with more than 100 employees to provide compensation data to the EEOC based on employee race, gender and ethnicity.

“The district court plainly exceeded its authority in mandating that EEOC undertake a number of actions in connection with the information collection—none of which EEOC is required by any statute or regulation to undertake,” Justice Department lawyers, including Lindsey Powell, said their opening brief that was recently filed in the D.C. Circuit. Powell is a former law clerk to Justices John Paul Stevens and Sonia Sotomayor.

Some other snippets from the brief:

>> “The district court exceeded its authority, and went far beyond the relief sought in the complaint, by directing EEOC to complete the information collection and to take a number of extraordinarily specific actions in connection therewith.”

>> “The district court’s order directing EEOC to conduct the collection in a particular way comes at a high cost to the government and the regulated community and may have ramifications for the quality of the information that EEOC collects.”

>> “Title VII does not even require EEOC to collect pay information, much less require that it be disclosed to the public.”

>> “There is no basis to conclude that, because the district court held that OMB unlawfully stayed the collection, the court somehow gained authority to limit EEOC’s lawful actions.”

Former Obama-era EEOC Commissioner Jenny Yang told the WSJ that the rule requiring companies to disclose a broader swath of pay data compels companies to re-evaluate their compensation schemes. “Right now, there’s a strong incentive to not look under the hood, because if you find problems, many feel they’re under an obligation to immediately fix it, so they’d rather not,” she said.

US Labor Board Upholds NYC Transit Whistleblower’s Win

A federal labor appeals board this week upheld a ruling that said the National Transit Systems Security Act provides anti-retaliation protections to municipal workers who report concerns about workplace safety and not just matters affecting the general public.

The U.S. Labor Department backed the New York City transit employee, Janathan Harte, who worked in a shop that built subway track-related items and who had made complaints about alleged safety hazards.

Harte’s case was closely watched as a test of the scope of the federal National Transit Systems Security Act, or NTSSA, which says public transportation agencies cannot take certain retaliatory or discriminatory actions against public transit workers. New York’s legal team, which included Robert Drinan, executive agency counsel at NYC Transit, argued the law concerns matters broadly affecting the general public.

>> The three-judge Administrative Review Board said this week that the NTSSA refers to “safety” many times “without reference or limitation to public security or terrorism.” The law covers employees who raise concerns about workplace safety hazards, the panel concluded.

>> “We note that the plain language of the NTSSA protects an employee who reports safety and security concerns and is not limited to actions involving public safety or threats of terrorism,” the labor appeals panel said.

Harte was represented by Charles Goetsch in New Haven, Connecticut. The NYC Transit general counsel wasn’t reached for comment. Read the Administrative Review Board decision here. And read the administrative law judge’s ruling, from 2016, here.

Who Got the Work

>> Gibson, Dunn & Crutcher partner Debra Yang (above) has been hired by the Los Angeles Opera to investigate sexual harassment claims against opera star Placido Domingo, the company’s general director. Yang, a former U.S. attorney in Los Angeles who leads Gibson Dunn’s crisis management group, was previously hired by the University of Southern California to investigate the conduct of a former medical school dean, the Associated Press reported.

>> Tracy Gerber, co-chair of Greenberg Traurig‘s broker-dealer securities litigation group, argued for Morgan Stanley Smith Barney in the U.S. Court of Appeals for the Seventh Circuit in an arbitration dispute. The court this week ruled that a former financial advisor can be forced to arbitrate his discrimination claims. Aaron Maduffof Chicago’s Maduff & Maduff argued for the advisor.

>> Ford Harrison partner Michael Prendergast in Jacksonville, Florida, was counsel to M2 Services Corp., which has agreed to pay $125,000 to settle an EEOC pregnancy discrimination suit. “The three-year consent decree settling the lawsuit provides for extensive injunctive relief to help secure a workplace free from sex discrimination in all of its forms, and pregnancy discrimination in particular,” the EEOC said in a statement. Read the consent decree here. EEOC trial attorney Robert Adler was lead counsel for the agency.

>> Littler Mendelson attorneys Kevin Kraham and G. Bethany Ingle represented Wal-Mart Stores East LP in a $100,000 settlement with the EEOC resolving a disability discrimination suit in U.S. District Court for the District of Columbia. EEOC lawyers Debra Lawrence, Maria Luisa Morocco and Ashley Martin signed the settlement for the agency. Read the consent decree here.

>> A team from Kirkland & Ellis—including K. Winn Allen, Craig Primis and Kathleen Ann Brogan—represent Honeywell International Inc. in an ERISA dispute at the U.S. Supreme Court. Stuart Israel of the Michigan firm Legghio & Israel P.C.is counsel of record for the challengers. The petitioners are expected to file a cert petition before October 13.

>> Wilmer Cutler Pickering Hale and Dorr litigation partner Mark Matuschak is counsel of record for the Pioneer Institute as an amicus party against the Massachusetts Department of Labor Relations in a First Amendment speech case involving public-sector unions. “Pioneer seeks to change policies that negatively affect freedom of association, freedom of speech, economic freedom, and government accountability. Pioneer believes that the First Amendment protects individuals from being forced to associate with or subsidize political speech with which they disagree,” Wilmer Hale’s brief said.

>> The U.S. Court of Appeals for the Second Circuit has revived a discrimination lawsuit by the former director of Hofstra University’s tennis program, who claimed he was fired as the result of false allegations of sexual harassment from a female player. Orrick, Herrington & Sutcliffe partner Jill Rosenberg, an attorney for Hofstra, said in a statement that she was “confident that Hofstra’s actions and decisions will be upheld once the merits of this matter are considered in the lower court.” Stephen Houck, an Offit Kurman attorney who represented the plaintiff, declined to comment on the ruling.

>> In-house lawyers Daniel Riederer and K. Phillip Tadlock at Federal Express Corp. represented the company at the U.S. Labor Department’s administrative review board. The board recently upheld the dismissal of a whistleblower complaint. Lee Seham of the White Plains, New York, firm Seham, Seham, Meltz & Petersen represented the complainant. Riederer is a lead counsel for litigation at FedEx, and Tadlock is a managing director for labor relations.

>> Molly Buie of Washington’s Seldon & Associates argued for a longtime former Housing and Urban Development lawyer who sued the agency over its telework accommodations. “No rational jury could conclude that the Department failed to offer reasonable accommodations,” a Seventh Circuit panel last week said, ruling for HUD. Kristen Rau of the Justice Department argued for the agency.

Around the Water Cooler

Workplace culture

Amazon Uses a Twitter Army of Employees to Fight Criticism of Warehouses. “When the ambassadors see others on social media discussing the brutal working conditions at Amazon fulfillment centers, its anti-union actions or anything else unflattering about the company, they step in to offer an on-the-ground perspective. They are, at once, warehouse workers and public relations representatives.” [NYT]

Ohio State Judge Must Face Staffer’s Hostile Work Claims. An Ohio state court judge who allegedly made racist and sexist comments must face a staffer’s hostile workplace claim, the U.S. Court of Appeals for the Sixth Circuit said. [Law.com] Read the ruling.

Law firm defendant

Schulte Roth Ex-Employee Sues, Alleging Sexist, Homophobic Remarks Made in Office. A former facilities employee at New York-based Schulte Roth & Zabel has accused the firm of turning a blind eye to sexist, homophobic, anti-Catholic and anti-Ecuadorian remarks that he said were directed at him and others by his colleagues. Megan Goddard of Goddard Law, who represents plaintiff Sebastian Alonzo. Schulte Roth said in a statement: “Our firm has been dedicated to fostering a diverse, respectful and inclusive culture, and this is a top priority. Mr. Alonzo’s complaint was thoroughly investigated by the firm and the EEOC. The EEOC dismissed the charges in July 2019.” [Law.com] Read the complaint here.

Trump administration 

EEOC Doesn’t Sign Trump DOJ’s Supreme Court Brief Against Transgender Employees. The Trump administration’s Justice Department has urged the U.S. Supreme Court to rule that a federal civil rights law does not bar discrimination against transgender employees, staking a position against the U.S. Equal Employment Opportunity Commission’s push for broader workplace protections. [Law.com]

Trump’s Speech at a Shell Plant Drew Thousands of Workers. They Were Paid Extra to be There. “Workers at a Royal Dutch Shell plant in Monaca, Pa., were forced to choose Tuesday between attending a speech by President Trump or forgoing overtime pay that their co-workers would earn.” [The Washington Post] More here at Pittsburgh Post-Gazette, and here at The New York Times.

Ford Turned to Trump Labor Pick Scalia to Fight Harassment Suits. “Since at least 2007, the company has leaned heavily on Eugene Scalia, the Trump administration’s pick to run the Labor Department, and a team of other high-powered attorneys to defend it in the most significant lawsuits at the federal appeals level.” [Bloomberg Law]

Labor Dept. Moves to Expand Religion Exemption for Hiring and Firing. “The Labor Department has proposed a rule that would allow more federal contractors to base employment decisions on religion, a move that rights advocates said could be used to discriminate against workers for all manner of reasons.” [NYT]

Legal education

‘Moral Delinquency and Incompetence:’ Interim Emory Law Dean Wanted Prof Fired Over Racial Slur. An Emory University law professor suspended last year for twice using a racial slur should be fired, according to a letter citing the law school’s dean. James Hughes Jr., who stepped down as interim dean of Emory’s School of Law last month, has asked the university Faculty Hearing Committee to strip Paul Zwier of his tenure and terminate him, my colleague R. Robin McDonald reports. [Law.com]

Unions

Barstool Sports Founder Railed Against Unions. Now His Threats Are Under Investigation. “[David] Rosenfeld, a veteran attorney who has argued in front of the U.S. Supreme Court, filed a grievance with the NLRB, an independent federal agency charged with safeguarding the right to organize as unions. The charges triggered an investigation that will require Barstool to respond to Rosenfeld’s complaint and could force [Dave] Portnoy to delete his tweet, apologize for it and assure his employees that he won’t punish them for unionizing.” [The Washington Post]

Notable Moves & More

Jackson Lewis P.C. said litigator H. Bernard Tisdale III has joined the firm to head the new office in Charlotte, North Carolina. Tisdale arrives from Ogletree Deakens, where he managed the Charlotte office for more than a decade.

Littler Mendelson has named Jeffrey Jones as managing shareholder of its Miami office. Jones will also continue to manage the firm’s Orlando office.

Stradley Ronon said Barry Klein has joined the firm’s Philadelphia office as partner in the employee benefits and executive compensation group. Klein formerly headed up the employee benefits and executive compensation practice at Gordon & Rees.

Labor of Law is taking a summer break, but we’ll be back on Sept. 12. Thanks, always, for reading—and please keep sending us notes about what we should be keeping our eyes on.