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

• Judge tells EEOC: Keep collecting pay data
• DLA Piper fires back in workplace skirmish
• No Gene Scalia recusal in investment-advice rulemaking
• K&L Gates loses chunk of Australia employment team

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

 

 

 

Judge Tells EEOC: Keep Collecting Pay Data

The EEOC can't stop its efforts—just yet—collecting pay information based on gender, race and ethnicity from major U.S. companies. The agency this week failed to convince a judge that a sufficient number of companies have submitted this data.

"As of October 28, 2019, the EEOC represents that 81.1% of eligible filers have submitted EEO-1 Component 2 data for calendar year 2017 and 81.5% of eligible filers have submitted such data for calendar year 2018," U.S. District Judge Tanya Chutkan (above) said in her order.

Chutkan wrote: "The court recognizes the burden the possibility of collecting data from every reporter imposes on the EEOC. But at this stage, the EEOC has not even collected the average response rate it calculates for reporters who submitted data within the grace period (rather than at the deadline) in previous years."

"Consistent with past and current agency practice, the proper measure of completeness is not based on the number of reports submitted at the filing deadline," Chutkan wrote.

The judge directed the EEOC to continue "to take all steps necessary to complete the EEO-1 Component 2 data collection for calendar years 2017 and 2018 by January 31, 2020."

Trump administration leaders unsuccessfully tried more than a year ago to freeze the Obama-era pay collection initiative, which was crafted as a measure to investigate pay discrepancies. The Justice Department is appealing the order Chutkan issued that revived the data collection.

The D.C. Circuit appeal has generated a substantial number of friend-of-the-court briefs, including one from Jenny Yang, a former Obama-era chair of the EEOC, and Patricia Shiu, former director of the Labor Department's Office of Federal Contract Compliance Programs.

"OMB's unlawful stay frustrates EEOC and OFCCP's goal of ending pay discrimination in employment, reduces the agencies' ability to ensure voluntary compliance, and impedes efficient enforcement activities," Ellen Eardley of Washington's Mehri & Skalet wrote in the brief.

 

 

Team of About 30 Lawyers Leaves K&L Gates in Australia

A team of about 30 lawyers is leaving the K&L Gates employment practice in Australia, according to people with knowledge of the situation, in what looks set to be one of the largest defections from an international law firm this year.

The team spans various offices and includes between six and eight partners, according to one former and one current partner, my colleagues Meganne Tillay and Christopher Niesche report at Law.com.

K&L Gates entered Australia by way of a merger with national firm Middletons in 2013. The firm has four offices across Australia, located in Sydney, Perth, Brisbane and Melbourne. According to its website, it has 237 lawyers in the country.

"[O]ur Australian labour, employment and workplace safety practice will remain strong and will continue to be a core area of service for K&L Gates clients in Australia and globally," K&L Gates said in a statement.

 

 

Who Got the Work

>> A team from Ogletree, Deakins, Nash, Smoak & Stewart—including John Flood and Connie Ng—represent New York-based Document Technologies Inc. in an employment suit against a former senior operations manager in the mid-Atlantic who jumped to a competitor. Document Technologies "provides on-site services to law firms, including the provision of personnel, equipment, technology solutions, and best practices to improve service delivery to attorneys and firm staff."

>> Lewis Brisbois associate Ariadne Panagopoulou was on the team advocating for Parkview Lounge LLC in a Second Circuit U.S. Court of Appeals case involving the National Labor Relations Board. The appeals court denied Parkview's petition for review and granted the petition for enforcement. Milakshmi Rajapakse of the NLRB represented the board.

>> Political law firm Nielsen Merksamer Parrinello Gross & Leoni has drafted a ballot initiative that would shield app-based ride-hailing and delivery services from a new California law that makes it tougher for companies to label workers as independent contractors, my colleague Cheryl Miller reports at Law.com. WSJ has more here.

 

 

Around the Water Cooler

Workplace disputes

DLA Piper Says Partner 'Orchestrated' Relationship With Her Alleged Assaulter. DLA Piper has submitted its first formal response to claims by partner Vanina Guerrero that she was the subject of repeated sexual assaults by Silicon Valley rainmaker Louis Lehot, highlighting a stream of consciousness letter she emailed to herself saying that offering "friendship w/o anything" would allow her to "control" him. Lehot has denied ever assaulting Guerrero. [Law.com]

NBC Says It Won't Prevent Former Employees from Speaking Publicly About Sexual Harassment. "NBCUniversal says former staffers are free to speak out about their experiences. In a statement first reported on MSNBC's 'Rachel Maddow Show,' the company said it will release past employees from agreements that may be preventing them from sharing their stories. 'Any former NBC News employee who believes that they cannot disclose their experience with sexual harassment as a result of a confidentiality or nondisparagement provision in their separation agreement should contact NBCUniversal and we will release them from that perceived obligation,' the statement said." [Washington Post]

Trump administration

Labor Secretary Scalia to Participate in Financial-Advice Rulemaking. "Labor Secretary Eugene Scalia can participate in the department's rewrite of a closely watched investment-advice rule, career government ethics attorneys said." Labor Solicitor Kate O'Scannlain (at left) said in a statement: "The new rulemaking is not a 'particular matter involving specific parties' and litigation related to a prior rule which the secretary handled while in private practice has ended." [WSJ] Dennis Kelleher, chief executive of the consumer advocate Better Markets, said in a statement: "Whether or not that is technically correct as a legal matter, it is shockingly bad policy and practice. At the very least, it has the appearance of impropriety, something that ethics rules are also meant to prevent."

Insight: USCIS Should Leave H-1B Specifics to Labor Department. "USCIS documents show the agency instructed its officers to supersede the authority and expertise of the Labor Department in determining certain eligibility requirements for H-1B visa applicants. Seyfarth Shaw immigration attorneys predict more lawsuits and warn this turf war will result is a loss of qualified candidates who leave and end up competing against U.S. companies." [Bloomberg Law]

DOJ Pledge on No-Poach Probes 'Rings Hollow' House Chair Says. "The Justice Department's intent to criminally prosecute companies that form anti-competitive no-poach agreements 'rings hollow' since the DOJ hasn't brought a single case in three years, the chair of the House Antitrust Subcommittee said Oct. 29. 'While I know these investigations take time, three years is a lot of time not to bring a single case,' Rep. David Cicilline (D-R.I.) said during a hearing on labor markets." [Bloomberg Law]

Feds Back Intel Worker in High Court Battle Over ERISA Deadlines. "The federal government is wading into litigation over Intel Corp.'s 401(k) plan, telling the U.S. Supreme Court that benefit plan sponsors can't shorten the deadline for filing ERISA lawsuits merely by sending workers plan information in the mail." [Bloomberg Law] Read the U.S. solicitor general's brief here.

Workplace culture

Bosses, Get Out of Your Employees' Way. "First, bosses need to understand the damage they do by interfering when they ought to stand aside. Second, bosses need to know when getting out of the way is best and how to do it. And third, employees need to know how they can reduce the damage when a stubborn or clueless boss continues to engage in misguided meddling." [WSJ]

Notable Moves

Seyfarth Shaw said Sherry Skibbe has rejoined the firm as a labor and employment partner in Los Angeles. Skibbe returns to the firm from Faraday Future, where she served as assistant general counsel.