Welcome to Labor of Law, our weekly summary of news and trends affecting the L&E community. Eugene Scalia's confirmation hearing is wrapping up, and we'll report back on his thinking about LGBT rights and other matters. Plus: EEOC Chairwoman Janet Dhillon and DOL's Craig Leen are expected to testify this afternoon in the U.S. House. Stay tuned.

Meanwhile: • California's new worker classification standard • Google faces new age discrimination suit • Ninth Circuit weighs pay-equity next steps • UPS settles EEOC's pregnancy discrimination claims. Scroll down for much more.

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

Google Faces New Age Discrimination Suit

Oakland-based Winer, Burritt & Tillis is representing a former Google engineer in a new California state suit that alleges age discrimination. Rodney Broome, the 72-year-old former employee, asserts that he faced "a relentless campaign of harassment and discrimination" when his 40-something boss joined the team in 2017. Read the complaint here.

Broome's suit follows an $11 million settlement between Google and more than 200 job seekers in July. The applicants claimed they were looked over for positions at the tech company, because of their age.

As part of the settlement, which Ogletree, Deakins, Nash, Smoak & Stewart negotiated on behalf of Google, the company also agreed to train employees on age bias, create a subcommittee to recruit for age diversity in certain engineering positions, change its marketing materials to reflect employees of all ages and thoroughly investigate complaints of age-based discrimination.

In the earlier case that settled, Ogletree partner Brian Berry said the hiring process at the company involves "feedback from numerous Google engineers in a multi-stage, flexible process of consensus decision making." Candidates who advance to an on-site interview meet with four or five engineers. Google deems only 20.5 percent of onsite job candidates to be qualified for an employment offer.

Candidates are also assessed for their "Googleyness" or culture fit. "Googleyness," according to court papers, includes traits such as "cares about the team, puts the user first, effectively challenges the status quo, thrives in ambiguity and values feedback." Google's internal candidate-tracking system—called gHire—makes note of an applicant's overall score, an assessment of coding abilities and any experience relevant to Google.

California Rewrites Gig Economy Rules

Gov. Gavin Newsom on Wednesday signed landmark worker classification legislation that will make it more difficult for companies to label workers as independent contractors, my colleague Cheryl Miller reports at Law.com.

In a signing message, Newsom said that while Assembly Bill 5 is "an important step," he will continue negotiating with gig companies over a potential compromise that would give their workers benefits and organizing power without classifying them as employees.

"A next step is creating pathways for more workers to form a union, collectively bargain to earn more and have a stronger voice at work—all while preserving flexibility and innovation," Newsom wrote.

>> "At this point, it's unclear what form such a proposal would take, but there's no doubt that any such attempt would not be well-received by the business community. While some gig companies favor the development of drivers' associations to help workers have more of a say in the decisions affecting their livelihoods, this was seen as part of a compromise to help stave off the full impact of AB 5," Richard Meneghello of Fisher & Phillips said in a new blog post.

>> The new law will "prompt a spike in litigation challenging independent contractor classifications. It is anticipated that the law will be subject to numerous legal challenges," Seyfarth Shaw partner Eric Lloyd and senior associate Pamela Vartabedian write. Indeed, plaintiffs lawyer Shannon Liss-Riordan of Boston's Licthen & Liss-Riordan is already suing Uber over its insistence that the new law won't affect how its classifies its drivers.

>> Meanwhile, Littler Mendelson attorneys posted a "practical tips" guide for navigating a new law that "will dramatically reshape the contours of California's workforce and economy, and potentially reclassify two million independent contractors."

Who Got the Work

>> A team from Day Pitney—led by partner Daniel Schwartz, with help from counsel Michael Dell—represented United Parcel Service Inc. in resolving EEOC pregnancy discrimination claims. UPS has agreed to pay $2.25 million to resolve a pregnancy discrimination charge. "The EEOC commends UPS for agreeing to resolve this matter short of litigation by making whole UPS workers who were not accommo­dated during pregnancy under UPS's previous policy," said Kevin Berry, director of the EEOC's New York District Office. "I also applaud UPS for confirm­ing that it will accommodate both union and non-union employees, and that accommodation may take forms other than light duty assignments." EEOC trial attorney Liane Rice represented the agency.

>> The law firm NT Lakis represented Sprint Corporation in resolving U.S. Labor Department contract-compliance claims. The company agreed to pay $558,650 to resolve claims from the U.S. Labor Department that the telecommunications company's hiring practices discriminated against African American and female applicants for positions at a now-shuttered facility in Fort Worth, Texas. "In the interest of bringing this longstanding review to rest, Sprint agreed to the settlement to resolve this matter," a Sprint spokesperson said Monday in an email. Read the conciliation agreement here.

>> Stuart Banner of the UCLA School of Law Supreme Court Clinic, working with Vicki Bejma of the Rhode Island firm Robinson & Clapham, this week filed a new petition in the U.S. Supreme Court that asks: "Whether the preemption provision of the Airline Deregulation Act of 1978, 49 U.S.C. § 41713(b)(1), exempts airlines from state and local wage regulation."

>> Cohen Milstein Sellers & Toll is representing Walmart workers in claims the retail giant discriminated against female workers. The Wall Street Journal reports this week: "Walmart Inc. likely discriminated against 178 female workers by paying less or denying promotions because of their gender, the Equal Employment Opportunity Commission said in memos."

Around the Water Cooler

Trump administration

Trump's NLRB, Trying to Cut Protections for Millions of Temps and Fast-Food Workers, Trips Up Again. "The labor-relations board's attempt to kill an Obama rule protecting third-party employees fizzled once because of a conflict of interest. Now, two representatives charge, there's a new conflict and it involves the agency's own use of temps." [Pro Publica]

An Obama-Era Rule to Collect Worker Pay Data Is Headed for the Chopping Block. EEOC Chair Janet Dhillon, set to appear this afternoon in the House, can expect to get peppered with questions about the agency's maneuvering. [The Washington Post]

Federal Employees Could Face More Discipline Under Proposed New Rules. "The rules emphasize management's discretion to order penalties up to firing in cases of alleged misconduct regardless of whether an agency had taken lesser actions against the employee first and regardless of how it had responded in some similar past situations. For cases of alleged poor performance, agencies would have more leeway in fulfilling their obligation to help employees try to improve before taking disciplinary action." [The Washington Post]

Law firm practices

Constangy Opens Raleigh Office to Expand Immigration Practice. Constangy, Brooks, Smith & Prophete has opened an office in Raleigh, North Carolina, with a partner from rival labor and employment firm Ogletree, Deakins, Nash, Smoak & Stewart. Constangy's chair, Neil Wasser, said his firm is investing in its immigration practice because "immigration is an area of law that is rapidly evolving as companies struggle to compete in a strong market for global talent, and as U.S. policies are in a state of almost constant flux." [Daily Report]

Technology

Do Messaging Apps Fit Into the Workplace? Not Always Comfortably. "In the U.S., there is no clear right to employee privacy. Employers can and should create clear, thoughtful rules around use of their devices, software and applications, and how employees will be monitored on employer equipment and in employer facilities. Employees should be familiar with the rules of their organization and the communications channels they are allowed to use and for what purposes," says Jacqueline Cooney, senior director of privacy and cybersecurity at Paul Hastings.[The Wall Street Journal]

Compliance

Ninth Circuit Weighs Next Steps in Major Pay-Equity Fight. The U.S. Supreme Court did not confront the merits of the case, Rizo v. Yovino, which tests the scope of the federal Equal Pay Act. The Ninth Circuit, sitting en banc, now is weighing its next steps, and both sides in the dispute offered competing views about what the appeals court should do now. The dispute has attracted widespread attention from business interests and advocates for workers. [The Recorder]

How Changes to California's Data-Privacy Rules Would Affect Employers. If the law is not amended in 2020 to extend the exemption or permanently change the workplace provisions, employers should "get ready for access requests from current and former employees, which tend to be complicated and time consuming," Lydia de la Torre, of counsel at Squire Patton Boggs, said. "A pitfall to avoid is long retention periods especially for unstructured data" such as emails, she said. [The Recorder]

5 Best Practices for NY Employers To Remain Compliant With Anti-Sexual Harassment Laws. Written policy. Annual training. Make sure managers know the importance. Those responsible for receiving complaints need training. And lastly: culture. The stakes are higher than ever before for employers who fail to keep harassment out of their workplaces," write Stacey Usiak and Andrew Yacyshyn of Tannenbaum Helpern Syracuse & Hirschtritt. [New York Law Journal]

Notable Moves

>> King & Spalding has added Ed Holzwanger as a partner in the firm's labor and employment group in Washington. Holzwanger arrives from Kirkland & Ellis.

>> Reed Smith said it has hired Jennifer Terry and Mark Phillips as labor and employment partners in the firm's Los Angeles office. They joined from Arent Fox.

>> FordHarrison LLP said Lawrence McNamara has rejoined the Dallas office as a partner. McNamara served as the Dallas office managing partner for two years before going in-house for Tesoro Corp. (now Marathon Petroleum Co.).