Welcome to Labor of Law, our weekly snapshot of news and trends affecting the L&E community. On the clock this week: the US Supreme Court's agreed to take up a new dispute over the scope of the "ministerial exception," and there's a new ERISA petition. Plus: Fox Rothschild, sued for alleged sexual harassment, fires a lawyer named as a defendant. Scroll down for Who Got the Work, and much more.

I'm Mike Scarcella in Washington. You can reach me at [email protected] and on Twitter @MikeScarcella. We're taking a short break for the holidays but returning the first week of January. A couple of holiday-themed reads for the road—The Tyranny of Office Secret Santas [The Atlantic] and Guess Who Is Coming to the Office Holiday Party [WSJ]. Thanks for reading, and happy holidays all.

Fresh SCOTUS Look at 'Ministerial Exception' to Work Bias

The U.S. Supreme Court once again will confront the scope of protections accorded to religious groups in job bias suits from employees who perform "ministerial" duties.

The justices on Wednesday agreed to hear arguments in two consolidated cases in which the U.S. Court of Appeals for the Ninth Circuit rejected claims from two Roman Catholic Schools that were sued for alleged age and disability discrimination by teachers. The cases likely will be heard in March or April.

In the 2012 Supreme Court decision Hosanna-Tabor Evangelical Church and School v. EEOC, the justices unanimously held that the so-called "ministerial exception," a First Amendment doctrine, protects the rights of religious organizations to appoint or remove employees who have significant religious duties. The exception stems from the principle that government may not interfere in internal church affairs.

The Becket Fund for Religious Liberty's vice president and senior counsel Eric Rassbach filed the petitions for both schools in Our Lady of Guadalupe School v. Morrissey-Berru and St. James Catholic School v. Biel. Rassbach argued the Ninth Circuit "flouted" the justices' 2012 decision. He contends the consensus among lower courts puts a focus on what important religious functions the employee performed.

Jennifer Lipski of JML Law in Woodland Hills, California, who represented the teachers in briefs opposing high court review, said Rassbach is asking for a "function-only" test that is inconsistent with Hosanna-Tabor's rejection of a rigid formula. The Ninth Circuit, she wrote, held that all of the circumstances of employment should be analyzed. Kristen Biel, the plaintiff whose teaching contract was not renewed, died from breast cancer in June and her husband has been substituted as personal representative of her estate.

A number of amicus briefs urging the justices to hear the two cases were filed on behalf of religious organizations and others.

Kirkland & Ellis partner Paul Clement represents Stephen Wise Temple; Jones Day partner Victoria Dorfman represents Prof. Douglas Laycock and other academics; Gibson, Dunn & Crutcher partner Thomas Dupree Jr. represents Church of God in Christ; Sidley Austin partner Eric McArthur represents General Conference of Seventh-day Adventists; and Wilmer Cutler Pickering Hale and Dorr partner Daniel Kearney Jr. represents religious liberty lawyer Asma Uddin. —Marcia Coyle

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Who Got the Work

>> Morgan, Lewis & Bockius—including David Salmons, chair of the firm's appellate practice—represents the University of Pennsylvania in a new ERISA petition filed this week at the U.S. Supreme Court. The petition challenges a Third Circuit ruling. "Even though no plaintiff has prevailed on the merits of these allegations, universities face immense pressure to quickly settle any claims that survive the pleading stage," Salmons wrote. "It is extremely expensive to litigate ERISA class actions, and the amount of money theo- retically at stake is staggering." The Morgan Lewis team also includes appellate partner Michael Kenneally in Washington and Philadelphia-based partner Brian Ortelere, co-chair of the ERISA litigation practice. Ortelere argued for the university in the Third Circuit. Michael Wolff of Schlichter Bogard & Denton argued for the challengers in the appeals court.

>> Lawyers from Latham & Watkins—including Joseph Serino Jr., Kuangyan Huang and Michael Jin—represent Credit Suisse in a whistleblower case at the U.S. Labor Department filed by a former executive named Colleen Graham. The WSJ reports: "A former Credit Suisse Group AG executive has told top bank executives and U.S. and Swiss authorities she believes she was put under surveillance in July 2017 while in a dispute with the bank, two years before a separate spying scandal rocked Credit Suisse. Colleen Graham, who worked for a joint venture half owned by the bank, said she believes a woman followed her over three days that month, allegedly in retaliation over her stance on an accounting issue at the joint venture." Robert Kraus and Desiree Gustafson of New York's Kraus & Zuchlewski represent Graham. Additionally, Jay Lefkowitz, Devora Allon and Thomas Burnett of Kirkland & Ellis represent Palantir Technologies Inc. Elizabeth Lewis, Elizabeth Inglis and Joseph Lockinger of Cooley represent Signac. Bloomberg has more here on Graham's case.

>> The Austin, Texas, firm Wiley Walsh is representing law professor Linda Mullenix in a gender discriminiation suit against the University of Texas at Austin. Read the complaint here, and the Austin American-Statesman has more here. My colleague Karen Sloan has more here at Law.com about the new complaint.

>> Cozen O'Connor's Jacob Rubinstein argued for the University of Chicago in the Seventh Circuit, which ruled this week in an NLRB case that the school must bargain with student employees. Eric Weitz represented the NLRB at oral argument.

Around the Water Cooler…

Federal agency action

Uber to Pay $4.4M to Victims of Alleged Gender Discrimination, Following EEOC Investigation. "The settlement addresses claims arising from a probe opened by the U.S. Equal Employment Opportunity Commission in 2017 into Uber's workplace culture. The EEOC found reasonable cause to believe 'Uber permitted a culture of sexual harassment and retaliation against individuals who complained about such harassment,' according to the agency." [Washington Post] Read the EEOC announcement here. EEOC Chair Janet Dhillon (above) said in a statement: "This resolution demonstrates the benefits of working cooperatively with EEOC and serves as a model for businesses committed to truly leveling the playing field where opportunity is not circumscribed by one's gender." More here at WSJ.

Companies Can Ban Use of Work Email in Union Organizing. "The board's decision allows employers to restrict use of their email and other information technology systems to certain purposes so long as they don't target union-related communications and activity. It also creates an exception for situations where there aren't other reasonable means to communicate on non-working time." [Bloomberg Law] Read the 3-1 decision here. Fisher Phillips partner Mike Carrouth says in an advisory: "The NLRB said it will apply the new standard retroactively to all pending cases challenging employers' rules restricting the use of IT resources for nonwork purposes." Fisher Phillips partner Mark Ricciardi in Las Vegas, working with senior counsel John McLachlan and of counsel David Dornak represented Caesar's Entertainment at the labor board. Jeff Hirsh has a post at Workplace Prof Blog that calls the NLRB ruling "disappointing" and says it's "directly in conflict both with Supreme Court precedent and basic property law."

McDonald's Wins Backing of Labor Board. "The National Labor Relations Board instructed a federal judge to approve a settlement in a case pertaining to McDonald's Corp.'s status as a joint employer, helping shield the company from liability from the employment practices of its hundreds of U.S. franchisees. The decision is a victory for the world's largest fast-food chain as it faces calls to improve working conditions at its 14,000 domestic restaurants. If finalized, the determination would put more responsibility on franchisees for McDonald's and other companies to address the concerns of their workers." [WSJ] More here at NPR and here at NYT. Read the board's order here.

Workplace diversity

Eric Holder and Zynga GC Phillips Talk Collaboration in Diversity. "Our profession is not yet where it needs to be. Law firms are trying to do a better job, certainly working with our partners, our clients who require more diversity. At Covington, we look at our last partner class, we had 14 people who made partner this year, nine were women, and six are [from] ethnically diverse backgrounds. That's an indication of where our firm is and the importance that we place on diversity," Eric Holder (at left), a former Obama-era attorney general, said. [Law.com]

Courts and cases

Lawsuit Accuses Fox Rothschild Lawyer of 'Pervasive' Sexual Harassment, Assault. A former Fox Rothschild staffer has sued the firm, alleging that she encountered "pervasive unwanted sexual comments, advances, requests and other similar conduct" while working at the firm, including an attempted rape. The plaintiff filed a complaint in the U.S. District Court for the Southern District of New York against the Philadelphia-based Am Law 100 firm and Morristown, New Jersey-based labor and employment counsel Ian Siminoff. Fox Rothschild, which said it was "disturbed" by the allegations, on Wednesday fired the lawyer accused in the suit. New York lawyer Tyrone A. Blackburn and Philadelphia lawyer Robert Vance represent the plaintiff. [Law.com]

Davis Polk Says Ex-Associate Suing for Race Discrimination Had 'Troubling' Performance. Davis Polk & Wardwell, firing back against a high-profile racial discrimination suit brought by former associate Kaloma Cardwell, claims the lawyer has a documented history of poor performance and he didn't improve, despite efforts to coach him. Davis Polk has retained Paul Weiss Rifkind Wharton & Garrison, including partners Bruce Birenboim, Jeh Johnson and Susanna Buergel, to seek to dismiss the suit. [Law.com]

Judge Hints He Might Rule for Jones Day on Some Claims in Gender Bias Suit. A federal judge on Monday hinted that he may dismiss at least some of the claims brought against Jones Day in a proposed $200 million class action lawsuit over alleged gender discrimination, my colleague Jacqueline Thomsen reports. Jones Day lawyer Jacob Roth said during a hearing this week that the former female lawyers at the firm behind the claims—represented by attorneys at Sanford Heisler Sharp—had merely made the assertions without providing much, if any, evidence to back them up. The hearing was over a motion for partial judgment on the pleadings, filed by Jones Day in July. [Law.com]

Bloomberg's Sexist Remarks Fostered Company Culture that Degrade Women, Lawsuits Allege. "Court records reviewed by ABC News indicate that at least 17 women have taken legal action against the company over the past three decades, with three of the cases specifically naming Bloomberg for his role in the company's culture. None of the cases made it to trial—four were either dismissed or withdrawn, while five were settled out of court. Three cases remain active." [ABC News]

Gig economy

It Isn't Just Uber: California Prepares for New Gig Worker Rules…and Confusion. "Just weeks before the law goes into effect on Jan. 1, employers and workers in other industries including truck drivers, therapists, and entertainers say it is unclear how AB5 will affect them, leading some to take precautionary measures and others to say they hope a court will clarify the matter soon. How the outstanding questions about AB5 get resolved in the coming months could have national implications, as lawmakers in other states including New York and New Jersey consider similar legislation." [WSJ]

Fisher Phillips Will Acquire Detroit Boutique, Expanding Midwest Footprint

Fisher & Phillips will acquire a 13-lawyer labor and employment boutique in Detroit, The Murray Law Group, effective Jan. 1, the Atlanta-based national law firm said this week, The deal will create the 36th U.S. office for the national labor and employment firm. Murray Law Group, founded 23 years ago, also has an immigration practice serving employers, my colleague Meredith Hobbs reports at Law.com.

Fisher Phillips chairman Roger Quillen said the firm has been seeking the right firm in Michigan for at least 10 years—and talking to the leadership of Murray Law Group the whole time. "We've been trying to sow the seeds with the Murray Law Group to consider us for a long time," Quillen said. "About six months ago, we began to talk more seriously."

Susan Hartmus Hiser, the Murray Law Group president, declined to name the boutique's clients but said they include automotive manufacturers and parts suppliers, health care providers and manufacturers, ranging from small businesses to the Fortune 500.

Murray Law Group had entertained offers from other local and national labor and employment firms over the years, Hiser said. "We were not ready to jump until we were 100% certain that we had found a firm that is the right fit for us," she said. "What sets Fisher Phillips apart in our mind is their substantive expertise and high-quality standards of representation."