Welcome back new and returning readers of Labor of Law, our weekly look at news and trends affecting the L&E community.. On the clock this week: US solicitor faces tough questions in age-discrimination fight | SCOTUS is pitched to review California arbitration ruling | Two pharma companies quarrel over noncompetes | Baker Hostetler partner gets Trump nod for Texas federal bench

Tips and feedback are welcome. I'm Mike Scarcella in Washington. You can reach me at [email protected] and on Twitter @MikeScarcella. And reach Marcia Coyle at [email protected]. Thanks for reading!

 

'The Federal Government Should Be the Leader'

Several U.S. Supreme Court justices appeared troubled by the Trump administration's argument Wednesday that federal employees must meet the same tough standard for proving age discrimination as employees in the private sector and state and local governments. There are an estimated more than 1.3 million federal employees over age 40.

The hurdle facing U.S. Solicitor General Noel Francisco is the fact the federal sector provision in the Age Discrimination in Employment Act is worded differently from the private sector provision. The justices in 2009 raised the bar for private employees by requiring them to show "but-for" causation to hold employers liable.

"I have a terrible time fitting your argument into the statutory language," Justice Samuel Alito Jr. told Francisco in the case Babb v. Wilkie.

The language at the center of the hour-long argument in Babb states that "personnel actions affecting employees who are at least 40 years of age… shall be made free from any discrimination based on age."

Latham & Watkins partner Roman Martinez (at left), counsel to Dr. Noris Babb, a clinical pharmacist at the Department of Veterans Affairs, argued that the language "made free from any discrimination" applies to the entire decision-making process, not just the final decision.

Martinez agreed with Justice Stephen Breyer's suggestion that his interpretation was similar to what Congress did when it amended Title VII in 1991 to allow employees to show age was a "motivating factor," instead of but-for causation, even if other motivating factors were involved.

But Francisco countered that the word "made" refers to the point at which the action is taken.

Some justices questioned why Congress would have intended different standards for federal and private sector employees. Breyer offered an answer: "For the same reason they passed that statute."

"The federal government should be the leader. Who fought more than any group of people for freedom from discrimination?" Breyer said. "Look at history. It was the federal government, and they should be holier. We have an interpretation of the statute. Now that in my mind is what you're up against."

Chief Justice John Roberts Jr. at one point raised whether stating "OK, Boomer" might be actionable.

Martinez responded: "It seems to me like that would be a classic question for the fact finder. But if the fact finder were to conclude that that statement reflected, was one of the factors going into this decision, I think it absolutely would be covered." —Marcia Coyle

More reading at NYT: In Age Bias Case, Justices Discuss 'O.K. Boomer' and Eggless Cakes. And a "view" from the court here at SCOTUSblog.

 

New SCOTUS Petition Calls California 'Serial Offender' of Arbitration Mandates

A California Supreme Court ruling in a wage dispute threatens to undermine "millions of arbitration agreements" and more broadly highlights the state's "recalcitrance" against allowing employers and their workers to resolve some workplace complaints out of court, lawyers for an auto dealer asserted in a new U.S. Supreme Court petition this week.

The petition, filed by a team from Paul, Weiss, Rifkind, Wharton & Garrison, said a series of California rulings against arbitration agreements have made the state a "serial offender" of U.S. Supreme Court decisions upholding mandates of the Federal Arbitration Act.

"The message has not gotten through," Paul Weiss partner Kannon Shanmugam (above) told the justices on behalf of OTO LLC, which does business as One Toyota of Oakland. Paul Weiss represents the auto dealer with the law firm Fine, Boggs & Perkins.

The California Supreme Court concluded the arbitration agreement at question was "substantively unconscionable." Arbitration, the court said, "is premised on the parties' mutual consent, not coercion."

The justices in the majority said that by signing the arbitration agreement, the former service technician surrendered a "full panoply" of administrative procedures and assistance and got in return access "to a formal and highly structured arbitration process that closely resembled civil litigation if he could figure out how to avail himself of its benefits and avoid its pitfalls."

 

Who Got the Work

>> BioMarin Pharmaceutical Inc. and Novo Nordisk Inc. are feuding in courts across the country over employee noncompete agreements. A team from Jones Day in Boston—including Christopher Morrison and Jenna LaPointe—represent plaintiff Thomas Russomano in a new suit against Novo Nordisk, his former employer. Novo Nordisk's lawyers at Morgan, Lewis & Bockius—including Sarah Butson, Siobhan Mee and David McManus—on Wednesday removed the suit to Massachusetts federal district court. The new case is part of a series spotlighting BioMarin's hiring of former Novo Nordisk employees. In the Northern District of New York, Novo Nordisk in September sued BioMarin and a sales manager. Other cases are pending in California and Texas courts.

>> Jackson Lewis of counsel Raymond Perez II in Atlanta advocated for McLane Company in a whistleblower case at the U.S. Labor Department's Administrative Review Board. Robert Wiley and Colin Walsh in Austin, Texas, represented the complainant. The divided board vacated an administrative law judge's ruling in favor of McLane and ordered further proceedings.

 

Around the Water Cooler

Law firm business

Littler Mendelson Claims Missouri Stiffed It on Incentives for Creating Kansas City Jobs. "A law firm claims the state of Missouri has withheld thousands of dollars in economic development incentives that the firm is owed for creating new jobs in Kansas City. San Francisco-based Littler Mendelson has filed a lawsuit against the Missouri Department of Economic Development, claiming it violated its contact with the company. The firm says it faces 'immediate and irreparable harm,' and claims the state's action will cost it as much as $1.5 million. The state disputes the claims, saying the company failed to create the agreed upon number of jobs." [Kansas City Star]

Atlanta Firm Fisher Phillips Cements Nashville Expansion With New Lease. "There's a new law firm in town, hoping to slice off its own piece of Nashville's boom." [Nashville Business Journal] Law.com has more here. Two Fisher & Phillips partners, Joe Shelton and Courtney Leyes, relocated from Atlanta and Memphis, respectively, to open the Nashville office, which started operating in July in temporary space.

Courts and cases

Trump Labor Agencies Ease Up On Recusals. "President Donald Trump promised to drain the swamp in Washington, but under his administration several high-level Labor Department and NLRB officials are dealing directly with cases they touched in the private sector, raising questions about conflicts of interest." Labor Secretary Eugene Scalia (at left), a former Gibson, Dunn & Crutcher partner, was cleared to work on new retirement-advice regulations at the agency despite having successfully challenged an earlier Obama-era rule. [Politico]

Lawsuit Over Breastfeeding Accommodation in Workplace Heard By N.H. Supreme Court. "The first question justices will need to decide is if a state employee covered under a collective bargaining contract can bring a claim for wrongful termination against the state. A second legal matter before the court involves whether [the plaintiff] filed her suit in state court within the three-year statute of limitations." [NHPR]

Pierce Bainbridge Dusts Off Arbitration Clause in Fight With Ex-Partner. Pierce Bainbridge Beck Price & Hecht and its former partner Donald Lewis have been battling each other for nearly 10 months over the circumstances of Lewis' departure from the firm. And the parties have been locked in court since May, with dueling lawsuits packed with scandalous allegations filed in New York and California. Now Pierce Bainbridge contends the dispute never belonged in court. [Law.com] Read the new filing here.

Tesla Employees Suing Over 'Jim Crow Era' Workplace Seek Sanctions. In asking for sanctions, the workers allege Tesla and its Sheppard, Mullin, Richter & Hampton counsel have failed to comply with a court order to release the names and contact information of their co-workers who could potentially speak to the alleged racist culture at the Fremont, California, factory. [Law.com] Read the motion here.

University of Denver Law Settles Another Pay Discrimination Suit by Female Faculty. The University of Denver Sturm College of Law has agreed to increase the compensation of an associate professor who sued in June, claiming she was underpaid compared with her male and nonminority faculty colleagues, the professor's lawyer said. [Law.com]

Federal and state agencies

As Remote Work Rises at U.S. Companies, Trump Is Calling Federal Employees Back to the Office. "After a big push toward telework in the Obama administration, President Trump's government is scaling it back at multiple agencies on the theory that a fanny in the seat prevents the kind of slacking off that can happen when no one's watching." [The Washington Post]

Short-Handed NLRB Confirms Power to Decide Cases After Recusals. "The National Labor Relations Board showed that it will still decide cases even when a recusal drops the current three-member panel down to just two voting members." [Bloomberg Law]

New U.S. Rule Limits When Two Companies Share Liability for Labor-Law Violations. "Business groups lobbied the Trump administration for the joint-employment rule after the Obama administration sought to expand the department's scope to consider two firms responsible for the same employee. The new rule more permanently establishes an employer-friendly policy stance." [WSJ] The NYT has more here.

Trump Makes Wage-Theft Suits Harder—But Not In California. "But the new rule will have no effect on California businesses because 'our laws are more protective' of workers, according to California Labor Department spokeswoman Crystal Page. And California labor laws are not preempted by the federal Fair Labor Standards Act, under which the Trump rule was issued. [Los Angeles Times]

New Jersey Could Be First State to Require Company Severance in Mass Layoffs. "Approved by the New Jersey Senate in December, the state Assembly on Monday voted 55-22 in approving the legislation, which would require that companies give workers a week's pay for every year worked, and extend the employee notice period for mass firings to 90 days from 60 days." [CBS News] More here at NJ.com

Workplace policies

Noncompete Agreements Allow Bosses to Chain Workers to Their Jobs. We Need to Free Them. "With little fanfare, modern-day employers have been reinstating an expectation of servitude that should have disappeared long ago," writes Terri Gerstein, director of the State and Local Enforcement Project at the Harvard Labor and Worklife Program. [NBC News]

Manufacturers Increase Perks to Get New Hires to Move. "Manufacturers are paying relocation costs and bonuses to move new hires across the country at a time of record-low unemployment and intense competition for skilled workers." [WSJ]

Gig economy

Can California Rein in Tech's Gig Platforms? A Primer on the Bold State Law That Will Try. "AB5 represents one of the most significant attempts to address the ways that technology has upended the nature of work. The bill's passage was a milestone in an increasingly loud discussion about reining in some of Silicon Valley's most vaunted companies, and its outcome could affect the plight of hundreds of thousands of workers for years as it moves to other states. But there's just one problem: No one knows whether it will work." [The Washington Post]

This Company Hires Gig Workers—As Employees. "'We're big proponents of AB 5,' says Adam Roston, CEO of BlueCrew, a Chicago-based startup that matches workers with shifts at employers. BlueCrew is, in other words, a temp agency. It hires workers and vets them with background checks and in-person interviews. But from there, tech takes over." [Wired]

Will the Trucking Industry Crack the AB5 Code for the Gig Economy? "I think it's a significant ruling, because it demonstrates AB5 is an ill-considered law that violates federal law," Gibson Dunn's Joshua Lipshutz said. "So in that respect, yes, I think it does support the arguments that are being made in favor of the laws invalidity by other companies, as well." [The Recorder]

Lyft Offers to Settle New York Driver Classification Disputes. "Lyft Inc. has offered to pay New York ride-share drivers about $100 to $600 each to settle a lawsuit alleging the company misclassified them as contractors instead of employees, but the deal would require the drivers to keep quiet about it." [Bloomberg Law]

 

Notable Moves & Announcements

>> Baker Hostetler labor and employment partner Drew Tipton in Houston will be a nominee to serve on the U.S. District Court for the Southern District of Texas, the White House said Wednesday. Tipton arrived at Baker Hostetler in 1999. He earlier was in practice at the firms Marek, Griffin, & Knaupp and Littler Mendelson.

>> Jackson Lewis said Stacey C.S. Cerrone, an ERISA litigator, has joined the firm's New Orleans office as a principal. Cerrone arrives from Proskauer. "Stacey brings a rare combination of technical proficiency and client-friendly practicality that is emblematic of our group here," office managing principal Charles Seemann III said.

>> Goodwin Procter has hired Christina Lewis as a partner in the firm's Boston office. "Demand for Goodwin's employment counsel is rising as our unique capital-meets-innovation platform continues to grow," Rob Hale, chairman of Goodwin's employment practice, said in a statement. "Christina has an outstanding track record in employment litigation and transaction work, and we are thrilled to welcome her to the Goodwin partnership."

>> Carlton Fields said it has brought on Rae T. Vann as a shareholder in the firm's Washington office. Rae earlier was managing partner at NT Lakis and general counsel to the Center for Workplace Compliance. "Rae is a luminary in her field, and we are thrilled to welcome her to our growing team in D.C.," Richard Choi, the Washington office managing shareholder, said. "Her unique background both as in-house and outside counsel gives her a deep appreciation of the issues our local and national clients must navigate in this rapidly evolving area of law."