Welcome to Labor of Law, our weekly snapshot of news and trends affecting the L&E community. On the clock this week: Armstrong Teasdale defeats former partner's age-bias claim | NALP adds data on mandatory arbitration at law firms | Orrick sues the Labor Department | Plaintiffs firms seek $10M in fees in McDonald's case | Notable moves

I'm Mike Scarcella in Washington. You can reach me at [email protected] and on Twitter @MikeScarcella. Your feedback is appreciated, and thanks for reading!

Armstrong Teasdale Defeats Former Partner's Age-Bias Claim

A federal appeals court ruled this week that law firm partners are not considered employees under the Age Discrimination in Employment Act, a decision that could have implications for other cases pitting partners against their own firms, my colleague David Thomas reports at Law.com.

The U.S. Court of Appeals for the Eighth Circuit upheld the dismissal of Joseph von Kaenel's age discrimination claim against Armstrong Teasdale, which had forced the equity partner to retire in 2014 when he turned 70. Determining whether a law firm partner like von Kaenel was an "employee" under the ADEA was a matter of first impression for the appeals court, the Eighth Circuit noted.

Neal Perryman, a member of Lewis Rice in St. Louis who represented Armstrong Teasdale, said they're "pleased with the Eighth Circuit's ruling in this matter of first impression in this circuit, and the court's unambiguous holding that equity partners like Mr. von Kaenel are not 'employees' entitled to protection under the ADEA."

The question of whether equity partners are employees under the ADEA comes as firms grapple with both an aging workforce and complaints about gender discrimination. Nearly half of Am Law 200 partners were over the age of 52 in 2016, according to an ALM analysis.

Von Kaenel was represented by Jerome Dobson and Gregory Rich of Dobson, Goldberg, Berns & Rich. The ABA Journal has more coverage here.

NALP Adds Data on Mandatory Arbitration at Law Firms

The National Association for Law Placement will start including data about the use of mandatory arbitration agreements in its Directory of Legal Employers—a key resource for law students in their employment searches, our law schools reporter Karen Sloan reports at Law.com. The directory provides information about recruiting practices, demographics and other metrics on thousands of law firms and legal organizations.

Starting in 2020, the directory will include three additional questions. The first centers on the firm's policies surrounding employment disputes and workplace misconduct for summer associates, associates and non-partner attorneys. The second asks whether those employees must sign nondisclosure agreements, while the third asks if they are required to submit to mandatory arbitration. NALP informed its members of the addition last month.

"Making information about which firms use forced arbitration more accessible to all law students helps raise awareness of the problem, which gets us one step closer to our goal of ending forced arbitration, once and for all," Harvard law student Sarah Bayer said.

Who Got the Work

>> A team from Orrick, Herrington & Sutcliffe last week sued the U.S. Labor Department in Washington's federal trial court to try to stop an ongoing OFCCP administrative action that alleges the tech company's recruitment, hiring and compensation practices are discriminatory against women and minorities. Orrick's team includes Andrew Silverman in New York and Robbie Manhas in Washington. Read the complaint, and read more here at Law.com. Meanwhile, Oracle and the DOL are set to face off today in San Francisco as a long-awaited hearing begins. The Washington Post has a preview here.

>> Lawyers from McGuireWoods, including William Doyle, Bruce Steen and Elena Marcuss, advocated for JPMorgan Chase & Co. at the Labor Department's administrative review board. The board on Nov. 26 denied the bank's petition for interlocutory review in a pay-bias OFCCP case. Read the order. The DOL team included Solicitor Kate O'Scannlain, Jeffrey Rogoff, Sudwiti Chanda, Anna Bennett, Alexander Kondo and Molly Theobold.

>> Jackson Lewis' Larry Seegull and Mary McCudden represented Diversified Maintenance LLC in a $750,000 settlement with the EEOC resolving a racial discrimination, harassment and retaliation lawsuit. The company denied the EEOC's claims. The EEOC team included senior trial attorney Eric Thompson in Baltimore. Read the consent decree.

>> A Connecticut federal judge has granted a motion from ESPN and The Walt Disney Company to dismiss a claim of intentional employment discrimination on the basis of race. ESPN is represented by Raymond Bertrand and James de Haan of Paul Hastings. Read the court's decision here.

>> Credle Enterprises LLC, doing business as McDonald's in the Texas panhandle, has agreed to pay $340,000 to settle a sexual harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission. Stacy Bruce of the Dallas firm Cobb Martinez Woodward PLLC represented the defendant. The EEOC team included Robert Canino, Suzanne Anderson and Meaghan Kuelbs. Read the consent decree here.

Around the Water Cooler

'Poetic Justice': Judge Alsup Berates DoorDash for Trying to Escape Its Own Arbitration Agreement. A federal judge last week rebuked DoorDash Monday for trying to get out of its own arbitration agreement as thousands of its delivery drivers pursue individual arbitration against the company, my colleague Alaina Lancaster reports. Judge William Alsup (above) of the U.S. District Court for the Northern District of California on Monday said there was a sense of poetic justice in watching the third-party delivery company and its Gibson, Dunn & Crutcher attorneys navigate the arbitration process after nearly 2,236 couriers filed for individual arbitration at once. [Law.com]

Inside Amazon's Delivery Push: Employees and Drivers Say an Overworked System Is Lax on Safety as Packages Pile Up. "NBC News spoke with 18 people in 11 states who detailed safety problems across the e-commerce giant's delivery operation. They included 13 current or former Amazon employees familiar with the company's "last mile" delivery program and five people who worked for Amazon-contracted delivery companies. Many asked that their names be withheld due to fear of retaliation or professional consequences from coming forward." [NBC] More at NYT here, a deep-dive on Amazon in Baltimore: Prime Mover: How Amazon Wove Itself Into the Life of an American City.

Workplace culture…

Goldman Sachs Launches Pronoun Initiative, Making It Easier for Employees to Identify Their Gender. "Goldman Sachs said it launched the initiative after two employees came out as transgender and the bank began to think more broadly about gender issues. "We believe in fostering an inclusive environment where they feel comfortable to be their authentic selves—and that should be welcomed and valued by their team and by the firm," the bank said in the announcement." [The Washington Post]

If You Can Manage a Waffle House, You Can Manage Anything. "It's difficult to imagine how Waffle House attracts good managers—let alone operates a viable business. But the fascinating thing is that somehow, it does." [Wall Street Journal]

Nevada Regulators Pass New Harassment Policy. "Nevada gambling regulators approved a new policy that more explicitly requires casinos to address discrimination in the workplace, including sexual harassment. The regulations make gambling licenses dependent in part on companies having antiharassment and antidiscrimination policies that include misconduct among employees and harassment of workers by people outside the company, such as casino customers." [Wall Street Journal]

Older IT Workers Left Out Despite Tech Talent Shortage. "Older information-technology professionals are being passed over by employers, even as IT job openings soar to record highs and employers say recruiting tech talent is a challenge." [Wall Street Journal]

Courts and cases…

Littler Hit With Negligence Suit Over Handling of Discovery. A Houston energy consulting and staffing company has filed a negligence suit against Littler Mendelson and Pittsburgh shareholder Terrence Murphy, alleging they provided too much information to adversaries in a federal FLSA case, leading to excess legal and settlement fees. A spokeswoman for Littler said in a statement that the "allegations are without merit and we will vigorously defend against them." [Law.com]

Twitter Beats Back Attempt to Revive Class Claims in Gender Discrimination Suit. A California appellate court has upheld a ruling denying class certification in a gender discrimination case brought on behalf of 135 women software engineers at Twitter who claim they were disproportionately passed over for promotion, my colleague Ross Todd reports. [Law.com] Read the court's order here.

'Outrageous' discrimination case arrives at Supreme Court. "A Supreme Court case alleging racial prejudice against an offshore oil worker could affect how courts across the country determine what employer actions count as discrimination under the law. The justices could soon agree to hear an appeal by David Peterson, a black former electrician with Linear Controls Inc., alleging that the Louisiana-based electrical maintenance and mechanical services company discriminated against him based on his race during a July 2015 assignment in the Gulf of Mexico." [E&E News]

After Postmates Again Balks at Arbitration Fees, Workers Seek Contempt Order. "Lawyers representing more than 5,200 Postmates couriers who have filed individual demands for arbitration of their wage-and-hour claims against the food and grocery delivery company filed a contempt motion last week in Oakland federal court, arguing that Postmates is defying an Oct. 22 order compelling the company to arbitrate workers' claims." [Reuters] More here at The Recorder: Federal Judge Asks Postmates to Explain Why It Hasn't Moved Forward With Courier Arbitration. (Read the judge's show-cause order here.)

First Circuit Narrowly Preserves Workers' Compensation Suit Against Canada. "In a cautious decision, the United States Court of Appeals for the First Circuit held that sovereign immunity does not protect Canada against a claim brought by a clerical worker who sustained injuries while working at its Boston consulate." [Law.com]

California's Top Court Takes Dynamex Retroactivity Question. "The California Supreme Court is poised to decide whether the test it created making it harder for employers to classify workers as contractors should apply retroactively, potentially setting up companies for wider liability under the new rigid standard." [Bloomberg Law]

McDonald's Pays $26M to Settle Wage Theft Suit. "The settlement puts an end to a multi-year legal battle between the company and California workers who alleged that McDonald's was skirting overtime payment laws and denying employees timely breaks, among other things. About 38,000 people are represented in the suit, according to a court filing obtained by CNN from the Fight for $15, which advocates for workers' rights." [CNN] The Wall Street Journal has more here, and Bloomberg Law here. And read more here at Law.com from my colleague Nate Robson on the three plaintiffs firms seeking $10M in legal fees.

Headhunter Wegman Partners Is Fined $155,000 Civil Penalty. "Wegman Partners, a prestigious legal headhunting firm in New York, was hit with a $155,000 civil penalty for violating workplace sexual harassment protections by the the New York City Commission on Human Rights. The city agency settled a lawsuit against the firm earlier this week, handing Wegman Partners the second-highest fine for sexual harassment in the NYC Commission's 57-year history." [Business Insider]

Judge Says No Refund for NJ Teachers Challenging Union Dues Under 'Janus'. A federal judge in Camden has dismissed two class actions brought on behalf of public school teachers who called some aspects of the collection of union dues unconstitutional in the wake of a recent U.S. Supreme Court ruling, my colleague Charles Toutant reports. [NJ Law Journal] Read the decision here.

Notable Moves: A Roundup

>> Perkins Coie, expanding its Anchorage office, said Michael O'Brien has joined the firm as senior counsel on the labor and employment team. O'Brien arrives from University of Alaska.

>> Saul Ewing Arnstein & Lehr has brought on Anna María Tejada as a labor and employment partner in Newark, New Jersey. Tejada joins from Kaufman Dolowich & Voluck, where she had been head of the labor and employment group in New Jersey.

>> Jackson Lewis said Kevin Reese has joined the firm's San Francisco office as a principal. Resse joins the firm from Ogletree Deakins, where he had been a shareholder focusing on wage and hour class actions.