Welcome to Labor of Law, our weekly snapshot of news and trends affecting the L&E community. On the clock this week: NLRB weighs 'profane' rules | Ogletree opens 2nd office in Canada | K&L Gates defectors launch firm in Australia | Honigman, Kirkland represent GM in suit against FCA | Sterling Jewelers class action is revived. I'm Mike Scarcella in Washington. You can reach me at [email protected] and on Twitter @MikeScarcella. Hope everyone has a great holiday next week—we'll return on Dec. 5. Thanks for reading!

 

NLRB Weighs Profanity/ Racially Offensive Standards

The National Labor Relations Board has been collecting and posting amicus briefs that confront whether and how the board should amend the standard that controls when profane or racially offensive language should, or should not be, protected under the National Labor Relations Act. Here's what a few friend-of-the-court briefs said:

>> EEOC: "Given that employers must address racist or sexist conduct that violates Title VII, and may need to do so even before the conduct becomes actionable in order to avoid liability for negligence, the EEOC urges the NLRB to consider a standard that permits employers to address such conduct, including by disciplining employees, as appropriate."

>> NLRB general counsel: "Employers must be able, through discipline, to deter employees who engage in conduct that may lead to violence or is unlawful or potentially unlawful under other federal laws without being penalized by the board for doing so. The NLRA should therefore be interpreted in harmony with other federal laws as part of a comprehensive federal scheme to protect employee rights in the workplace."

>> General Motors: "General Motors urges the Board to repudiate the Atlantic Steel test to be more consistent with the realities of the modem workplace—including every employee's right to be free from exposure to unlawful workplace harassment and discrimination—and the proliferation of laws and regulations prohibiting such behavior," Barnes & Thornburg lawyers wrote.

>> Association of Corporate Counsel: "The current Board precedent on racist and sexist speech by employees while engaged in protected labor activity under Section 7 of the National Labor Relations Act (NLRA) conflicts with anti-discrimination laws and frustrates corporate diversity efforts. Employees do not need to make racially or sexually offensive statements in order to exercise their labor rights, and an employer that prohibits such behavior generally should not have to tolerate it in the context of activity protected under the NLRA."

>> AFL-CIO: "The AFL-CIO is dedicated to protecting the Section 7 rights of employees to engage in protected concerted activity for the purpose of collective bargaining and other mutual aid and protection. We, therefore, strongly oppose changes in the well-settled case law which would narrow and restrict employees' rights to engage in protected concerted activity, under the guise of accommodating state and federal civil rights laws, especially because current law already provides reasonable means to harmonize the National Labor Relations Act (NLRA) requirements and an employer's obligations under Title VII and other antidiscrimination laws."

>> Society for Human Resource Management: "The board now has the opportunity to recognize the realities of today's workplace and adopt common-sense guidelines that recognize and celebrate the diversity of the workforce, encourage civility, respect, and decorum as core values, and harmonize the NLRA with federal, state, and local anti-discrimination laws. The proposals set forth in this amicus brief accomplish these important goals without abandoning any of the key protections offered by the NLRA. Labor law in the twenty-first century should demand nothing less," a team from Seyfarth wrote.

>> Weinberg, Roger & Rosenfeld: "The level of civil discourse has become more contentious, disrespectful, ill-mannered, rude and offensive since Donald Trump took office. His homophobic, racist, genderbiased statements and rants have created a level of public speech and private discourse that is unfortunate. This board cannot issue a decision without taking into account what Trump and his supporters have done and said."

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With a gift of clearly explaining complex—and confusing—technologies, Blockchain researcher Bettina Warburg (Co-Founder and Managing Partner of Warburg Serres Investments and Animal Ventures) joins the keynote line up at Legalweek New York. READ MORE

Ogletree Deakins Opens 2nd Canadian Office in Montréal

After hiring a partner in the same city earlier this year, labor and employment law firm Ogletree, Deakins, Nash, Smoak & Stewart has officially opened its second Canadian office in Montréal, Québec, my colleague Xiumei Dong reports.

The Montréal office marks the Atlanta firm's 54th office worldwide. It will be led by partner Lucie Guimond who joined Ogletree Deakins in April, coming from Canadian-British firm Gowling WLG. Before that, she practiced law at her own firm.

"What I've seen is that many American clients have interest in Canada … and of course, they are looking for legal assistance, and many clients like to deal with the same firm all across" their business footprint, Guimond said. Guimond was joined by associate Ryan Martin, who arrived from Dentons this month.

>> In other practice developments: A team of 28 lawyers that defected from K&L Gates in Australia last month is launching a new law firm specializing in employment and workplace law. The firm, named Kingston Reid, says it will maintain a strong relationship with K&L Gates. It is simultaneously opening offices on Monday in Sydney, Melbourne and Perth, with a founding team of nine partners, all of whom left K&L Gates. All of the other lawyers and some of the support staff also came from the global firm. [Law.com]

Who Got the Work

>> McGuireWoods employment partner Joel Allen represented Dollar General in a settlement that requires the company to pay $6 million to resolve an EEOC class race discrimination suit. "This case is important because Dollar General is not just providing relief for a past practice but for the future as well," said Gregory Gochanour, regional attorney for the EEOC's Chicago District. "If the company plans to use criminal history, it must retain a criminologist to develop a fair process. Unlike other background checks based on unproven myths and biases about people with criminal backgrounds, Dollar General's new approach will be informed by experts with knowledge of actual risk." Read the consent decree. Neither side admitted or denied the claims and defenses in the case.

>> Lawyers from Desmarais LLP—including John Desmarais, Tamir Packin and Carson Olshenki—represent Cisco Systems Inc. in a suit filed this week in San Francisco federal court alleging trade secrets theft against two former engineers at the company. Lorrie Peeters of Caffarelli & Associates and Daniel Muller of Ventura Hersey & Muller represent two of the named defendants. Bloomberg has more here.

>> Lawyers from Honigman LLP—including Jeffrey Lamb, J. Michael Huget and Shirin Goyal—teamed up with a team from Kirkland & Ellis, including Chicago partner Hariklia Karis (at left), on behalf of plaintiff General Motors LLC in a new suit against rival automaker Fiat Chrysler Automobiles NV. GM's suit alleges, according to a Reuters report, that FCA "engaged in bribery to corrupt the bargaining process with the United Auto Workers (UAW) union and gain wage and work practices advantages over GM." Read the complaint here. FCA said in a statement: "We intend to vigorously defend against this meritless lawsuit and pursue all legal remedies in response to it." The WSJ has more here, NYT here and Washington Post here.

>> "Google has hired an anti-union consulting firm to advise management as it deals with widespread worker unrest, including accusations that it has retaliated against organizers of a global walkout and cracked down on dissent inside the company. The firm, called IRI Consultants, appears to work frequently for hospitals and other health care organizations," The New York Times reports.

>> Portland-based Pierce Atwood LLP lawyers Daniel Strader and Katharine Rand represented Walmart Stores Inc. in disability lawsuit settlement. "Walmart Inc. will pay $80,000 and implement nationwide changes to its disability reassignment policy to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission," the EEOC reports. EEOC regional attorney Jeffrey Burstein and senior trial attorney Markus Penzel represented the agency. Read the consent decree here.

>> Nebraska lawyers Vince Powers and Kathleen Neary represent University of Nebraska-Lincoln law professor Josephine Potuto in a lawsuit alleging equal pay disparities, the Omaha World-Herald reports. A university spokesperson said Potuto's claims are "without merit."

Around the Water Cooler…

Gig economy

DC Attorney General Sues DoorDash, Claiming It Misled Customers and Pocketed Workers' Tips. "D.C. Attorney General Karl Racine (above) brought charges against DoorDash Tuesday, accusing the company of pocketing tips meant for workers and misleading customers about where their money was going. Racine is seeking to recover millions of dollars in tip money customers paid through DoorDash over two years under its previous model, which the attorney general's office called 'deceptive.' In a statement, a DoorDash spokesperson said, 'We strongly disagree with and are disappointed by the action taken today.'" [CNBC] The Washington Post has more here.

Uber Hit With $650 Million Employment Tax Bill in New Jersey. "Uber Technologies Inc. owes New Jersey about $650 million in unemployment and disability insurance taxes because the rideshare company has been misclassifying drivers as independent contractors, the state's labor department said." [Bloomberg Law]

Workplace culture and cases

The Most Watched Show at the Office? Sexual Harassment Training Videos. "New or expanded laws mandating sexual harassment training in states like New York and California, as well as a nationwide awakening to a very real problem, have fostered a market for workplace training videos and for actors who can bring #MeToo to life, usually in roles lasting just a minute or two." [NYT]

Large Gender Bias Class Action Against Sterling Jewelers Is Revived. "A federal appeals court on Monday restored a nationwide class action arbitration allowing at least 70,000 female Sterling Jewelers employees to pursue claims that the retailer paid them less and promoted them less often than men for a decade. The 2nd U.S. Circuit Court of Appeals in Manhattan said a lower court judge erred in finding that an arbitrator lacked power to include women in the class who had not said they wanted to join it, rather than only the 254 who authorized it." [Reuters] Read the decision here. A team from Cohen Milstein Sellers & Toll—including Joseph Sellers, Kalpana Kotagal (at left) and Shaylyn Cochran—represent the plaintiffs, and Seyfarth Shaw, including Gerald Maatman Jr., David Ross, Lorie Almon and Daniel Klein—litigated on behalf of Sterling.

Former LeClairRyan Shareholder Can Collect $1M from Firm's Insurance. A former LeClairRyan shareholder has been given the green light by a federal bankruptcy judge to begin collecting the nearly $1 million she won when she sued the now-shuttered law firm for gender discrimination. U.S. Bankruptcy Judge Kevin Huennekens for the Eastern District of Virginia ruled that Michele Craddock can collect the money from the bankrupt firm, where she worked for 12 years until she was allegedly forced out in 2015 by discriminatory compensation practices. [Law.com]

In Employment Landscape, Context Still Matters for Zero-Tolerance Policies. "Zero-tolerance policies have a purpose and that is to set a standard and an expectation. A zero-tolerance policy draws a clear line that an employer does not condone certain behaviors, whether that's discrimination, sexual harassment, theft or use of racial slurs. And employers should most definitely set such standards and create a workplace culture that upholds those values. However, the policy or rule cannot be applied in a formal and shortsighted manner." [NLJ]

Steve Wynn Challenges Nevada Gambling Regulators' Authority to Punish Him. "Steve Wynn can't be punished with fines by Nevada gambling regulators, the former Las Vegas magnate's attorneys argued in a filing this week, because he has already left the casino industry and remains willing to stay out. The Nevada Gaming Control Board is seeking to ban Mr. Wynn, by having his status as a person suitable to hold a casino license revoked, and to order him to pay a fine." [WSJ] Read Wynn's motion to dismiss—from the Nevada law firm Campbell & Williams—at this link.

Older Workers Have a Big Secret: Their Age. "Employees in their 50s, 60s and 70s, though outnumbered in the workforce by millennials, are the only group whose labor-force participation rates are growing. Yet they are the least visible in offices, retail outlets and other workplaces. That is because many conceal their ages. Worried they'll be avoided or rejected by younger managers and co-workers, they often go to great lengths to try to appear younger—by doing such things as getting cosmetic surgery, shortening their work histories on social-media accounts and in conversations, not citing past accomplishments and not displaying photographs of their grandchildren." [WSJ]

Pimco Defends Its Culture in Gender and Race Discrimination Suit. "Pimco said the firm 'vigorously denies that it has engaged in any type of systematic or other discrimination against female employees, employees of colour, or mothers, with respect to compensation, performance evaluations, promotions, business opportunities or professional support.'" [Financial Times] The Los Angeles Times has more here, and Law.com here.

McDonald's Failed to Protect Workers Against Violent Customers, Lawsuit Says. "A group of McDonald's cooks and cashiers is suing the fast-food chain over the company's handling of what the lawsuit presents as a "nationwide pattern" of customers attacking and harassing workers. The lawsuit, filed Thursday by 17 workers from the Chicago area, alleges that McDonald's and its franchisees have failed to protect workers by extending work hours late into the night, designing stores in ways that left workers more vulnerable, and providing inadequate security training and support." [NPR]

Technology

Employees' Text Messaging Is Keeping Corporations Up at Night. Text messages are too hot to handle for many financial companies, according to the "Electronic Communications Compliance Survey Report" by communication archiving provider Smarsh. Indeed, 77% of the 300 information technology and compliance leaders and practitioners in North America that Smarsh contacted for the survey said text messaging was their greatest compliance risk. [Law.com]

Notable Moves & More

• Blank Rome LLP has brought on Oliver Katz as a litigation associate in Philadelphia. Oliver previously was assistant corporation counsel for the labor and employment law division of the New York City Law Department.

• Ogletree Deakins said it has hired Scott Preston as a shareholder in Indianapolis. Preston formerly was a principal and Indianapolis litigation manager at Jackson Lewis. Additionally, Ogletree said it has brought on Tiffany Hofmeister as of counsel from Krieg DeVault, where she was senior corporate counsel.

• Seyfarth said Candace Quinn has rejoined the firm as senior counsel in the employee benefits and executive compensation group. Quinn arrives from The Wagner Law Group, where she had been a partner.

• Ropes & Gray has hired Ellen Sueda as executive compensation and benefits practice group as counsel in San Francisco. Sueda arrives from Weil, Gotshal & Manges, where she had been counsel. She earlier worked at King & Spalding and Seyfarth Shaw.

• Clark Hill said Margaret DiBianca has joined the firm as a member in the labor and employment practice in Wilmington. DiBianca formerly was a partner at Smith, Katzenstein & Jenkins in Wilmington.

• Honigman LLP has brought on labor and employment lawyer Jack Vrett as partner in Chicago. Vrett, former chief labor and employment counsel to the governor of Illinois, arrives from Hodges, Loizzi, Eisenhammer, Rodick & Kohn.