Welcome to Labor of Law, our weekly summary of news and trends affecting the L&E community. On the clock: 9th Circuit's Microsoft pay-bias arguments • Major Lindsey sues over noncompete clause • Alphabet board hires Cravath to investigate handling of workplace relationships and sexual misconduct allegations • Who got the work: 6th Circuit revives ADA claims

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

 

 

 

'Very Little Is Clear to Me in This Case'

A lawyer bringing a gender discrimination class action against Microsoft Corp. faced tough questions Monday from a federal appeals court panel struggling to understand the process by which the software giant determined its pay and promotions, my colleague Amanda Bronstad reports at Law.com.

Anne Shaver, a partner at San Francisco's Lieff Cabraser Heimann & Bernstein, tried to convince the U.S. Court of Appeals for the Ninth Circuit to reinstate a nationwide class action alleging Microsoft systematically discriminated against more than 8,600 female engineers and information technology professionals, in both pay and promotions.

The panelists peppered Shaver with questions about how Microsoft evaluated its employees, and Judge Johnnie Rawlinson of the U.S. Court of Appeals for the Ninth Circuit repeatedly asked her to identify the policy at issue.

"But under Dukes, we have to find what the policy is because the policy has to operate across the board," said Rawlinson, referring to the 2011 U.S. Supreme Court decision Walmart v. Dukes. "I don't feel there is a policy that's been pointed out."

The panel continued to have questions after Orrick, Herrington & Sutcliffe's Lynne Hermle began to argue for Microsoft. Rawlinson even asked her not to use the word "clearly" again. "Please don't say 'clearly', because very little is clear to me in this case," she said.

Hermle argued: "The reason there is so much confusion about it is there is not a single piece of evidence to support it," she told the panel. "There was no evidence this was a common practice."

 

 

Major Lindsey Sues Ex-Partner, Who Is Also Raising Her Own Claims

The legal recruiter Major, Lindsey & Africa is suing a former partner who last month joined a competitor's new outpost in Washington, a move her lawyer said was partly spurred by her desire to escape what she claimed was a "hostile, male dominated work environment" that was tolerated without consequences.

Major Lindsey's lawsuit was filed last week in U.S. District Court for the District of Columbia against Lauren Drake (at left), who jumped to rival recruiter MLegal Group. The complaint, brought by the management-side firm Littler Mendelson, alleged Drake has violated a noncompete provision in her employment contract with Major, Lindsey & Africa, or MLA. The suit was accompanied by a request for an injunction. The case was assigned to U.S. District Judge Trevor McFadden, a former Baker McKenzie partner who joined the bench in 2017.

The litigation appears poised to open a window into workplace culture at Major Lindsey, the country's largest legal recruitment firm, and it will offer a glimpse more broadly at competition among recruiters, who help place associates, partners and in-house counsel at law firms and corporate legal departments.

Drake's lawyer, Leslie Silverman, a shareholder in Washington at the labor and employment firm Fortney & Scott, traded a series of letters in early October with Littler Mendelson in which she claimed Major Lindsey accepted a work environment plagued by sexual misconduct by high-ranking male executives.

"Despite outward appearances, the venerable legal recruitment firm has largely become a far less professional boys' club, leaving a number of its employees and, in particular, many of its stalwart older female employees feeling dismayed, disenfranchised and increasingly uncomfortable in their work environment," Silverman wrote in one letter, which was included as an attachment to Major Lindsey's lawsuit.

Lawyers for Major Lindsey deny the firm perpetuated or otherwise tolerated any office misconduct.

"The first time MLA heard of any complaint is when we asked Lauren to honor her non-compete agreement. We have a zero tolerance policy and would have investigated any report," Maureen R. Dry-Wasson, Major Lindsey's general counsel and global privacy officer, said in a statement Friday. "As a matter of fairness to all the people who work here, I'm disappointed by the use of this tactic in a matter that is very straightforward."

 

 

Who Got the Work

>>Teams from Littler Mendelson and Morgan, Lewis & Bockius advocated for Amazon and Integrity Staffing Solutions in the U.S. Court of Appeals for the Sixth Circuit in a wage dispute. The appeals court this week asked the Pennsylvania Supreme Court to take a fresh look at the scope of the state's minimum wage law, my colleague Max Mitchell reports. Winebrake & Santillo attorney Peter Winebrake is advocating for the workers. Read the decision here.

>> "A former Hershey Co. intellectual property lawyer can't proceed with a suit alleging he was discriminated against when the company terminated him by saying it was eliminating his position, but then hiring 'a younger, African-American woman' for the same job, the Middle District of Pennsylvania said Nov. 4," Bloomberg Law reports. The Harrisburg firm Smigel, Anderson & Sacks represented plaintiff Kurt Ehresman. Morgan, Lewis & Bockius represented Hershey. Read the ruling here.

>> A black former corporate associate at Davis Polk & Wardwell in New York sued the firm on Monday for racial discrimination and retaliation, alleging the firm's leaders denied him opportunities to work on substantive deals and gave him bad performance reviews as a pretext for his 2018 firing, my colleague Jack Newsham reports. David Jeffries and Martin Restituyo represent the plaintiff. Davis Polk managing partner Neil Barr said the firm would "defend [itself] vigorously and will show, based on the record, that the claims are not supported by the facts or the law." Read the complaint here.

>> An Ogletree, Deakins, Nash, Smoak & Stewart team—including W. Chris Harrison and Audrey Calkins—represented Triumph Aerostructures in a whistleblower dispute at the U.S. Labor Department's administrative review board. The appeals panel upheld an ALJ's decision that the company did not violate whistleblower protection provisions after a worker raised air transportation safety concerns. Christine Neill and Jane Legler Byrne of the Dallas firm Neill & Byrne Law represented the worker.

>> Douglas Wigdor of Wigdor LLP has lodged an EEOC complaint against the WeWork and its CEO. The Washington Post reports: "A former employee has accused WeWork and ousted chief executive Adam Neumann of pregnancy discrimination, alleging she was publicly and privately demeaned, demoted and eventually fired because of her pregnancies. The complaint is the latest to emerge about the company's culture under Neumann's leadership."The company said in a statement it "intends to vigorously defend itself against this claim." WeWork, the Post reported, "already faces lawsuits alleging age, gender and pay discrimination from multiple women, including a former executive." The New York Times has more here and Bloomberg here.

>> Stephen Console and Katherine Oeltjen of Philadelphia's Console Mattiacci Law Offices are representing a plaintiff in a labor suit against Starbucks filed last week in New Jersey federal district court. "A former Starbucks regional director has sued the company for wrongful termination, alleging the company discriminated against her in the aftermath of a highly publicized arrest of two black men at a Starbucks store in Philadelphia in April 2018," CNN reports. Littler Mendelson represented Starbucks in a claim the plaintiff filed at the EEOC. Read the N.J. federal court complaint here.

 

 

Around the Water Cooler

Workplace culture

McDonaldʼs C.E.O. Fired Over a Relationship Thatʼs Becoming Taboo. "The mere fact that a successful executive was fired because of what McDonald's described as a 'recent consensual relationship' reflects changing attitudes about romance in the workplace, employment lawyers and other experts said." Debra Katz of the Washington civil rights and labor firm Katz, Marshall & Banks said: "Companies in the aftermath of #MeToo have really understood that there's an inherent power differential and what's perceived to be consensual in the eyes of the executive may not be with the subordinate." [NYT]

Alphabet's Board of Directors Is Investigating Executives Over Inappropriate Relationships. "Alphabet's board of directors has opened an investigation into how executives handled claims of sexual harassment and other misconduct, including behavior of Chief Legal Officer David Drummond, who has been accused of having relationships with employees. The board has formed an independent subcommittee to look into the issues and has hired a law firm to assist with the investigation, according to materials viewed by CNBC." Drummond (at left) said in a statement: "Other than Jennifer [Blakely], I never started a relationship with anyone else who was working at Google or Alphabet. Any suggestion otherwise is simply untrue." [CNBC] Alphabet reportedly has hired Cravath, Swaine & Moore, according to Reuters.

For Many #MeToo Accusers, Speaking Up Is Just The Beginning. "It's been two years since people started posting their sexual harassment and assault experiences online, with the hashtag #MeToo. That fomented policy changes at many workplaces, and among some state and local lawmakers. But what became of the women who spoke out?" [NPR]

Former Weinstein Assistant Speaks Out Against Harassment and NDAs. "For nearly 20 years Rowena Chiu refused to talk about her experience working for Harvey Weinstein. When the Hollywood producer was accused of serial sexual aggression two years ago, few people in her life realised that she had her own story to tell. In fact she had been silenced by a punitive non-disclosure agreement signed after she accused Mr Weinstein of sexual assault in 1998. 'When you've kept a secret for 20 years, the idea of speaking out is just sheer terror,' she says. 'It took time to kind of unravel the story and for me to be ready.'" [Financial Times]

Technology

What an Amazon Fulfillment Center Tour Reveals. "It would be wonderful if Amazon didn't fight worker efforts to unionize, or increased their hourly pay, or consumed less energy, or better moderated its marketplace. But that version of Amazon could only exist if the company revised its core value: speed, frugality, optimization, and an 'obsession' with the customer." [The New Yorker]

Warehouses Are Tracking Workers' Every Muscle Movement. "Unions and researchers who study workplace surveillance worry that employers who begin gathering data on workers for whatever reason will be unable to resist using it against them. Productivity tracking is already widespread throughout the industry—and workers can be fired or punished if their performance dips. The opacity of data-analysis tools can make it difficult for workers to fully understand how much employers can see." [Bloomberg]

U.S. Urged to Invest More in AI; ex-Google CEO Warns of China's Progress. "U.S. government funding in artificial intelligence has fallen short and the country needs to invest in research, train an AI-ready workforce and apply the technology to national security missions, a government-commissioned panel led by Google's former CEO said in an interim report on Monday." [Reuters] Read the full report here.

Some Employees Chafe as Google's New Internal Rules Take Hold. "A controversial new hire at Google has provided a test of the company's new community guidelines, which it says are an effort to curb increased incivility at work. But some employees say the new rules smack of censorship." [Bloomberg]

Trump administration

NLRB Rejects Top Lawyer's View on Protections for Lawsuits. "The National Labor Relations Board expressly rejected its general counsel's argument that federal labor law doesn't protect workers who band together to file legal claims. Workers would have lost the National Labor Relations Act's shield against employer retaliation for filing lawsuits or administrative claims under the GC's theory. The board also said in its Oct. 30 ruling that a California construction firm could impose a mandatory arbitration program in response to a lawsuit filed by a group of workers." [Bloomberg Law] Read the board's decision. Read the brief here from General Counsel Peter Robb.

Civil appeals

First Circuit Rejects Defamation Claim Arising from Employee Evaluation. "The First Circuit's ruling should enhance employers' abilities to seek the opinion of outside medical professionals to gauge an employee's fitness for work, and reassure those medical professionals that they will not be subject to liability for an adverse recommendation, so long as their opinions are not made recklessly or with actual malice toward the employee." [Law.com]

 

 

Notable Moves & More

>> William Scott Hardy, a shareholder at Ogletree, Deakins, Nash, Smoak & Stewart in Pittsburgh, was nominated Wednesday to a seat on the U.S. District Court for the Western District of Pennsylvania. Before joining Ogletree Deakins in 2010, Hardy practiced for more than a decade at Cohen & Grigsby.

>> Epstein Becker Green said labor and employment attorney Garen Dodge has joined the firm in Washington as a member. Dodge previously practiced at Sheppard Mullin.

>> Barnes & Thornburg said labor and employment attorney Alec Beck has joined the firm in Minneapolis as a partner. Beck previously practiced at Ford & Harrison.