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

• EEOC says 37,000 filers haven't yet submitted new pay data collection • California embraces sweeping gig economy labor rules, and Uber has already been sued • Cushman & Wakefield takes age bias ruling to US Supreme Court • Moves & new hires: Seyfarth snags four Polsinelli lawyers

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

Hey, It's the EEOC, Please Submit Pay Data (For Now, at Least)

EEOC Chairwoman Janet Dhillon (above) this week took the agency's first steps to end advanced pay-data collection, but that move doesn't affect the ongoing efforts—initiated by court order—that require companies to disclose information based on gender, race and ethnicity.

As of Sept. 6, only 13.4 percent of eligible filers had submitted requisite data, the U.S. Justice Department told a Washington federal trial judge. Some 37,000 filers haven't registered, reached out or submitted data, the government said in a court filing. The EEOC said it plans to call those filers. Hello, EEOC here. The deadline to submit the pay info is Sept. 30.

As the EEOC makes those calls, the agency is moving forward with an administrative process to end the collection. The headline on a blog post from Fisher & Phillips' Cheryl Behymer put it this way: "Pay Data Collection May Just Be A One-Time Predicament."

"Despite the fact that it could not stop the court from enforcing the Obama-era rules requiring pay data collection in 2019, the EEOC's announcement today seeks to wrest back power from the court and put a halt to any future efforts," Behymer writes. "EEOC Chair Janet Dhillon released a 9-page report on behalf of the board in the Federal Register today, scheduled for publication on September 12, reestablishing the agency's authority when it comes to pay data."

You can read the Federal Register notice here. The EEOC essentially says the burden on employers is much greater than first calculated during the Obama administration. Expect any lawsuit down the road to raise questions about that. Comments will be collected over the next 60 days.

The Justice Department's appeal of U.S. District Judge Tanya Chutkan's order reinstating the pay-data collection is unfolding in the D.C. Circuit. There's no argument date yet.

California Embraces New Labor Rules for Gig Companies; Uber Is Sued Hours Later

Gov. Gavin Newsom was poised Thursday to sign new worker-classification rules that threaten to upend the gig economy, raising fresh criticism from the top lawyer at Uber Technologies and setting the stage for a likely wave of new lawsuits across industries, my colleague Cheryl Miller reports at Law.com.

After hours of debate Tuesday night and Wednesday morning, state lawmakers sent Newsom Assembly Bill 5, a measure that will codify a landmark California Supreme Court ruling last year. That decision made it more difficult for gig companies not to classify their workers as employees entitled to wider protections such as minimum wage and benefits. Newsom has said he will sign the bill.

"Today the Legislature made it clear: we will not in good conscience allow free-riding businesses to profit off depriving millions of workers from basic employee rights that lead to a middle-class job," said the bill's author, Assemblywoman Lorena Gonzalez, D-San Diego. "It's our duty to look out for working men and women, not Wall Street and their get-rich-quick IPOs."

In a call with reporters less than an hour after AB 5 passed in the Assembly, Uber chief legal officer Tony West said the company has no immediate plans to reclassify its drivers as employees and instead will consider legal and political alternatives, including a potential 2020 ballot measure.

"Having to take a harder test does not determine the outcome of the test," said West, who insisted that Uber can meet the new legal threshold to continue to classify its drivers as independent contractors.

That stance will almost assuredly invite lawsuits from Uber workers, who are widely covered by arbitration agreements, and California city attorneys, who were empowered by late amendments to the bill to seek injunctive relief from companies that don't comply with the law.

On Wednesday, the plaintiffs firm Lichten & Liss-Riordan sued Uber Technologies in the Northern District of California in a purported class action from drivers who argue they're being misclassified as contractors. Read the complaint here.

"Uber has nevertheless publicly and defiantly stated, including through its General Counsel Tony West, that it will not classify its drivers as employees," the complaint said. "Uber has stated that it will not reclassify its drivers, even though the legislature has clearly intended for Uber to be covered by this statute."

More California labor reading at the NYT and Politico.

Docket Watch: Cushman & Wakefield Files Cert Petition in Bias Case

New York-based real estate services company Cushman & Wakefield is challenging a US appeals court ruling that upheld a $1.3M jury verdict for alleged age and disability discrimination. Texas-based Baker Botts partner Evan Young filed the petition last week.

The case involves a software engineer who alleged he was fired because of his age, and the dispute involves the applicability of the New York City Human Rights Law to an employee who was not working in the city. You can read the First Circuit ruling here.

The case tees up an issue about "certification"—when and how federal courts should certify issues for state courts. "The First Circuit in this case resolved a state-law claim that the state court itself would likely not have recognized," Young writes in the petition.

"Federal courts routinely certify far less consequential matters. It may well be that too many cases are certified—but at least some cases, like this one, warrant certification that never comes," Young writes. The former employee's response to the petition is due next month.

Lawyers from the firms Holland & Knight and Parsons McEntire McCleary represented Cushman & Wakefield in the appeals court. The Szal Law Group and Dennehy Law advocated for the former employee.

Who Got the Work

>> The head of Norton Rose Fulbright's employment and labor team—Shauna Clark, based in Houston—was lead counsel for Conoco Phillips in a case at the U.S. Labor Department Administrative Review Board. The panel upheld the dismissal of claims from a former regulatory supervisor who alleged her termination was unlawful. Alfonso Kennard Jr. and Davina Bloom represented the challenger.

>> A Gibson, Dunn & Crutcher team—Theodore Boutrous Jr., Samuel Eckman and Theane Evangelis (at left)—represented Uber in a Third Circuit dispute over New Jersey drivers and arbitration. The appeals court on Wednesday said Uber cannot enforce an arbitration clause in a class action lawsuit claiming the company's New Jersey drivers are misclassified as independent contractors, my colleague Charles Toutant reports. Daniel Horowitz, Matthew Miller and Justin Swidler of New Jersey's Swartz Swidler represented the challengers. Swindler argued in the appeals court. Evangelis, based in Los Angeles, argued for Uber.

>> Business groups are going to court to target a New Jersey measure curbing arbitration clauses in work contracts. The plaintiffs are represented by Andrew Pincus and Archis Parasharami of Mayer Brown in Washington, along with Shalom Stone of Stone Conroy in Florham Park. Alida Kass of the Civil Justice Institute and Steven Lehotsky of the Chamber of Commerce also represent the plaintiffs. Read the complaint here.

>> Husch Blackwell's Jeffery Nobles in Houston represents Oncor Electric Delivery Company, LLC in the U.S. Supreme Court, where a new cert petition claims violations of the Age Discrimination in Employment Act. The petition was filed by Thomas Smith of Houston's Roger G. Jain & Associates. Nobles waived a response.

>> The Tennessee firm Rainey, Kizer, Reviere & Bell represented A Plus Care Solutions Inc. in a recent settlement with the EEOC. The company, which supplies caregivers to clients with disabilities, agreed to pay $200,000 to settle a pregnancy discrimination lawsuit. Read the consent order here.

Around the Water Cooler

Workplace

Plaintiff in 'Mommy Track' Suit Against MoFo Fights Request for Records From Her New Employer. A lawyer for one of the Jane Doe plaintiffs pursuing claims that Morrison & Foerster discriminates against pregnant women and mothers contends the law firm is seeking to damage her client's reputation by asking her new employer for personnel records. MoFo is seeking Jane Doe 4′s personnel file, including documents relating to her job performance, disciplinary record, compensation, and benefits, and any documents related to her recruitment and hiring at the new firm. [Law.com]

Paralegal Sues Philly Law Firm, Alleging Sexual Harassment and 'Party Culture.' Philadelphia-based midsize law firm Zarwin Baum DeVito Kaplan Schaer Toddy is facing allegations of creating a "sexually hostile work environment." A former paralegal of the firm alleges she encountered inappropriate comments from male lawyers at the firm. The firm said in a statement: "Zarwin Baum intends to defend itself vigorously against any and all of these claims." [Law.com]

Why Is It OK for Employers to Constantly Surveil Workers? "Congress' debate around passing privacy legislation has largely left out workplace protections. The current debate centers "consumer privacy," but this distinction falsely creates dual identities with different protections for you the consumer and you the worker." [Slate]

Some Companies Offer a New Benefit: Payroll Advances and Loans. "A growing number of companies are helping workers gain access to payroll advances and loans, reflecting concern over the impact money problems are having on productivity levels and worker retention. Employers including Walmart Inc. and Pima County, Ariz., have recently added these services. The aim is to help cash-strapped employees, many with damaged credit, cover unexpected expenses without resorting to high-cost debt." [WSJ]

Trade secrets

Trade-Secrets Case Linked to Google Seen as Warning to Silicon Valley. "Legal experts who specialize in intellectual property say they can't think of another example in which federal agents pursued an expansive criminal case against a high-level U.S. tech employee accused of taking proprietary material to a new job. Traditionally, trade-secrets-theft cases have been brought by U.S. companies against a former employee, not by the Justice Department." [WSJ]

Trump administration

Misclassifying Workers Doesn't Violate Labor Law, NLRB Says. "Employers don't violate federal labor law by misclassifying their workers as independent contractors instead of employees, the National Labor Relations Board ruled on Aug. 29." [Bloomberg Law] Read the labor board's decision here.

Social Media Guideposts Develop for Navigating Labor Law. "The NLRB general counsel's office added to the growing body of guidance employers can use to craft legally sound social media policies with a recent advice memo on a national pharmacy chain's policy." [Bloomberg Law]

Agency Would Raise Bar for Asylum Seekers' Work Permits."The Trump administration wants to make it harder for asylum seekers to receive work permits while they wait for their cases to be decided, a move that could deter some immigrants from entering the country illegally." [WSJ]

Pay equity

Gender Pay Gap for General Counsel Has Grown, Study Says. The gender pay gap for U.S.-based general counsel is widening, according to a new report. Equilar's latest General Counsel Pay Trends study shows that male GCs earned 18.6% more than their female counterparts—the largest pay discrepancy since Equilar began studying GC wages in 2014. [Law.com]

Notable Moves & Announcements

• Seyfarth Shaw has scooped up a team of four litigation partners from Polsinelli in Atlanta, and others are expected to follow. The team, led by Nancy Rafuse, also includes William Hill Jr., James Swartz Jr. and Stan Hill. William Hill said that he expected five other lawyers on their team at Polsinelli to join them at Seyfarth. Additionally, Seyfarth said it hired Jeffrey Bauer from Dorsey & Whitney as a partner in the employee benefits and executive compensation department.

• Reed Smith said it has added Jennifer Terry and Mark Phillips as labor and employment partners in Los Angeles. They arrived from Arent Fox.

• Cooley added Alessandra Murata as a compensation and benefits partner based in the Palo Alto office. Murata arrives from Goodwin Procter.

• Littler Mendelson has hired Jon Yonemitsu as a shareholder in the San Diego office. He joins Littler from Gordon Rees Scully Mansukhani.

• McGuireWoods added Remy Kessler as apartner in the firm's Century City, California, office. Kessler, with more than three decades of experience. joined from Reed Smith.