Welcome back to Labor of Law, our weekly look at news and trends affecting the L&E community. On the clock this week: A war of words in the Mofo 'mommy track' suit | Keeping tabs on EEOC amicus votes | Novo Nordisk wants nondisclosure case fast-tracked | Susan Fowler's Uber memoir is out | Kansas judge resigns after apologizing for misconduct | Littler expands in Austria

Thanks for reading, and we'd love your feedback. Tips and suggestions are welcome. I'm Mike Scarcella in Washington. You can reach me at [email protected] and on Twitter @MikeScarcella.

War of Words Follows Class Action Retreat in MoFo 'Mommy Track' Suit

Morrison & Foerster is seizing on the withdrawal of $100 million in proposed class action claims by two ex-lawyers who alleged the firm discriminates against pregnant women and new mothers, casting the move as a kind of vindication, my colleague David Thomas reports at Law.com.

But the Sanford Heisler Sharp attorneys representing plaintiffs Sherry William and Joshua Ashley Klayman rejected Morrison & Foerster chairman Larren Nashelsky's assertion that stripping class claims from the case "validates what we've said here since the beginning."

"Dropping all of the class action and collective action claims, it's a clear indication that there's no supporting fact pattern of any of the systemic issues of gender discrimination that they've alleged," Nashelsky told ALM.

Andrew Melzer, a New York partner at Sanford Heisler, said in a statement the plaintiffs' position on the facts haven't changed, and "our clients are currently focusing on pursuing their individual claims based on strategic considerations." He added: "Plaintiffs continue to pursue allegations that MoFo engages in systematic gender and pregnancy discrimination and seek to address MoFo's broader practices."

Keeping Tabs on EEOC Amicus Votes

Since November the EEOC has voted six times on whether to file an amicus brief in a pending labor and employment case, agency records show. Five of the votes were unanimous in support of filing a brief. In the sixth case, from January, the EEOC split 2-1, with Chair Janet Dhillon voting against the filing of the amicus brief.

The EEOC's brief in that case was filed in an Americans With Disabilities Act case U.S. Court of Appeals for the Seventh Circuit. The case confronts the scope of an employer's duty to reasonably accommodate an employee.

"Among other things, the district court held that, during the period following plaintiff's request for an accommodation, his employer did not need to seek out suitable accommodations or otherwise work with plaintiff to look for an accommodation that would allow him to continue working; the employer could instead sit back and do nothing other than consider any proposals plaintiff made," EEOC attorney Barbara Sloan wrote in the brief. "This and other rulings, if upheld on appeal, would muddle the interpretation of the reasonable-accommodation provisions of the ADA and undermine enforcement of the statute."

Adam Hansen of Apollo Law LLC in Minneapolis represents Mark Mlsna, who worked as a train conductor for Union Pacific Railroad Company. The company is represented by David Kennison and Scott Moore of the Omaha, Nebraska, firm Baird Holm LLP.

Meanwhile, the Trump White House is expected to nominate a slate of EEOC nominees in the coming weeks, according to a Bloomberg Law report. The Republican nominees will be Gibson, Dunn & Crutcher associate Andrea Lucas and Keith Sonderling, a U.S. Labor Department official. Jocelyn Samuels, who leads the Williams Institute at UCLA Law School, will be a Democratic nominee, the report said.

Novo Nordisk Wants Nondisclosure Appeal Fast-Tracked

Lawyers for pharmaceutical giant Novo Nordisk Inc. are pressing their case in the U.S. Court of Appeals for the First Circuit that a former employee should be barred by a nondisclosure agreement from working at rival company BioMarin Pharmaceutical Inc.

Novo's Morgan, Lewis & Bockius team, including Elaine McChesney and Brian Killian, on Wednesday asked the Boston-based court to expedite the company's appeal. Earlier this month, a federal trial judge refused to issue a preliminary injunction. Lawyers from Jones Day represent the former Novo employee, Thomas Russomano.

"Expediting the appeal will help Novo Nordisk minimize or avoid harm," McChesney wrote in the First Circuit filing this week. "Novo Nordisk will suffer competitive harm after Russomano begins in earnest to work for BioMarin, because Russomano joined BioMarin's hemophilia sales organization in the exact same territory he covered for Novo Nordisk."

The appeal is one of several cases in state and federal courts across the country confronting the scope of Novo's nondisclosure agreements. Other cases are playing out in New York, Texas and California courts.

We'll keep tabs on the cases and report back.

Who Got the Work

>> Morgan, Lewis & Bockius partner William Peterson was counsel to petitioner Dolgencorp LLC, which operates Dollar General retails stores, in an NLRB case in the U.S. Court of Appeals for the Eighth Circuit. The appeals court denied Dolgencorp's petition for review and granted the labor board's petition for enforcement. Valerie Collins argued for the NLRB.

>> Ogletree, Deakins, Nash, Smoak & Stewart represented KeyBank National Association, and Littler Mendelson represented Collabera Inc., in a whistleblower case at the U.S. Labor Department's administrative review board. A panel recently upheld an administrative law judge who concluded the respondents were entitled to summary judgment.

>> "In a new lawsuit, a former auditor at the Federal Reserve Bank of Boston claimed she was fired after complaining she was paid less than her male colleagues for years despite stellar performance reviews and a heavy workload," Boston Business Journal reports. Read the complaint here in Massachusetts federal district court. Robert Richardson and Edward Cumbo of Boston's Richardson & Cumbo represent the plaintiff.

Around the Water Cooler…

Workplace culture and policies

Susan Fowler: Why I Fought for Justice at Uber. "I had no idea then that my words would change much more than that—that they would inspire other women to speak up about their experiences and help ignite a revolution that would forever change the dialogue around sexual harassment and workplace mistreatment." [NYT] Read the Times' book review here.

Kansas Federal Judge Will Resign Amid New Scrutiny of Workplace Harassment Claims. Carlos Murguia, a federal trial judge in Kansas who was publicly reprimanded last year for workplace misconduct claims, including sexual harassment, announced his resignation this week from the bench, amid new scrutiny from U.S. House lawmakers about how effectively the courts were combatting judicial misbehavior. [Law.com] "Nine employment discrimination lawsuits pending in federal court were reassigned this week, away from U.S. District Court of Kansas Judge Carlos Murguia, who himself has been accused of workplace harassment," according to The Kansas City Star

How to Fix the Broken Corporate Approach to Addressing Sexual Harassment. "Companies have many tools to limit their legal liability, from ironclad nondisclosure agreements (NDAs) to check-the-box sexual harassment training. And while companies may believe that these tools are helpful, every dollar spent on legal protections could instead be spent on evidence-based approaches to reducing harassment itself, rather than simply reducing the responsibility for it," Gretchen Carlson (at left) and Roxanne Petraeus write. [Fortune]

What a Leaked Copy of Tesla's Employee Handbook Reveals. "The company's independent streak extends to its employee handbook, which is titled 'The Anti-Handbook Handbook.' Business Insider reviewed photos of the document. Written in a conversational, sometimes combative tone ('Our assumption will be that if you don't call and don't show up for work, you're a jerk. You better have a really good reason for not letting us know why you didn't come in or you're out of here.'), the handbook positions Tesla as an outlier in the auto and tech industries. [Business Insider]

Pronouns Prompt Fight Over Transgender, Religious Rights at Work. "Eckert Seamans attorney Karen Elliott said there may be a happy medium in these situations that keep them out of court: getting the employee who opposes using gender-identifiable pronouns to just call the person by their preferred first name." [Bloomberg Law]

Law Firms Scrap Dress Codes and 'Dear Sirs' to Modernize Image. "City law firms are scrapping dress codes and banning the use of 'Dear Sirs' in legal correspondence to shake off the sector's fusty image. US litigation powerhouse Quinn Emanuel this week adopted gender-neutral forms of address in a break with tradition." [Financial Times]

Courts and cases

DoorDash's Multimillion-Dollar Arbitration Mistake. "Companies that impose individual arbitration clauses on workers neither want nor expect to arbitrate their disputes. Instead, as the DoorDash case suggests, businesses expect that low-wage workers will not enforce their rights in any forum. Work-arounds such as the mass-arbitration strategy are satisfying when they produce an outcome such as Monday's court order, but those results probably are not scalable. A more sustainable solution would be for Congress to bar employers from unilaterally imposing individual arbitration on their workforces." [The Washington Post]

There's a Little-Known Employment Contract Provision Enabling Billions of Dollars in Wage Theft Each Year. "The available data on forced arbitration, from Cornell University's Andrew Colvin and others, make clear why many employers prefer to go that route: Employees are much less likely to win their claim under arbitration (21.4 percent) than they are in federal (36.4 percent) or state (51 percent) courts." [The Washington Post]

California Court Orders Apple to Pay Workers for Time Spent Searching Their Bags. Apple Inc. should have paid its store employees for time spent undergoing security checks of bags they bring to work, the California Supreme Court said last week. Ted Boutrous of Gibson, Dunn & Crutcher was on the team defending Apple. The plaintiffs were represented by Kimberly Kralowec of San Francisco's Kralowec Law Group. [Law.com] Read the decision here.

Judge Denies Sanctions Against Tesla in 'Messy' Discovery Spat. A federal judge rejected a request for sanctions against Tesla over the company's handling of discovery in a case where three factory employees say they faced daily discrimination. Tesla is represented by Sheppard, Mullin, Richter & Hampton. The plaintiffs are represented by attorneys from California Civil Rights Law Group in San Anselmo, California, and Los Angeles' Alexander Krakow + Glick. [The Recorder]

Recruitment

Amazon Changes the Way It Recruits M.B.A.s "Now, in its quest for recruits with a combination of technical skills and business acumen, Amazon says it has broadened its scope and has extended offers to students from 80 M.B.A. programs, curtailing some campus visits and putting a heavy emphasis on virtual meetings. Other companies including Goldman Sachs Group Inc. and Bain & Co. have also increasingly opted to expand the scope of schools from which they recruit to pull from a greater diversity of backgrounds and talents." [WSJ]

Notable Moves & More

• Rapidly growing labor and employment firm Littler Mendelson has found another partner for its expansion in Europe: the three-attorney Austrian firm Gerlach Rechtsanwälte, my colleague Dan Packel reports. The combination brings Littler's presence in Europe up to eight countries, and it's also intended to give the firm a gateway into Central and Eastern Europe. The firm is already in France, the U.K., Italy, Germany, the Netherlands, Belgium, and, most recently, Norway. Read the firm's announcement here.

• Sidley Austin said María Meléndez will serve as the firm's new chief diversity officer, succeeding Sally Olson, who has served in the role since 2011. Olson is retiring from the firm May 1. Meléndez was previously a partner in Sidley's commercial litigation and dispute practice.

• Jackson Lewis P.C. said Howard Shapiro has joined the firm's New Orleans office as a principal and co-leader of the ERISA litigation practice. He joins from Proskauer Rose, where he jointly led the ERISA litigation team and served as office managing partner in New Orleans.

• Kilpatrick Townsend & Stockton has hired Leah Farmer as a labor and employment associate in the firm's Atlanta office. Farmer arrives from Littler Mendelson.

• Gordon Rees Scully Mansukhani has brought on Patrick Burns as an employment and commercial litigation partner in the firm's Alexandria, Virginia, and Washington offices. He was previously at PilieroMazza PLLC.