Welcome back to Labor of Law, our weekly look at news and trends affecting the L&E community. On the clock this week: Coronavirus Threat: L&E Perspectives | PwC Settles Age Bias Case | PBS Wins 'Moral Clause' Verdict | Who Got the Work

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

 

 

Coronavirus Threat: 'Employers Want to Know What to Do'

Employers across the country this week were assessing workplace readiness plans as the coronavirus spread. Workers across industries were advised on procedures for telecommuting, as management assessed the potential for widespread and sustained disruptions.

The legal industry this week shifted into crisis management mode. Meanwhile, a lawyer in New York was seriously ill, and employees at hospitals were reportedly embracing technology including interactive video and secure messaging to reduce exposure to patients with the virus.

My colleague MP McQueen reached out to labor and employment specialists, and in-house lawyers, for a glimpse at some of the discussions. You can read her full report here at Law.com. A few highlights follow.

>> Nancy Inesta, a labor and employment litigator at Baker & Hostetler in Los Angeles, and chair of a firm task force on COVID-19 said she had "back-to-back client calls today for dealing with this issue. Employers want to know what to do."

>> Elisabeth Belmont, corporate counsel at MaineHealth in Portland, Maine, the largest health care organization in the state, said: "In-house counsel can be helpful in separating business issues from legal issues and identifying approaches to each one in a manner that mitigates both business and legal risk."

>> Howard Mavity, a partner at Fisher & Phillips and founder and former co-chair of the firm's workplace safety and catastrophe management group: "If 50% of your workforce is forced to take a week or two weeks of their time, you will have a huge unfunded expense. I am telling clients you need to sit and calculate this out, because it could put you in the red. Can you insure any of it? Or fund any of it? That's not something most employers have thought out."

More reading:

• Coronavirus and the Workplace: What if the Boss Says to Stay Home? "With new unexplained cases being reported in the United States—and the first domestic death from the illness reported on Saturday—a growing number of American workers could soon be asked to alter their routines, or just stay home. Exactly how that affects you will depend on many factors, including the generosity of your employer's benefits and where you live. Here's what labor lawyers and business groups say could potentially unfold in your workplace—and what rights workers have." [NYT]

• Trump Administration Confronting Decisions to Limit Teleworking for Federal Employees As Coronavirus Cases Mount. "As the government recommends to businesses that some employees should consider working from home amid the coronavirus outbreak, the Trump administration is confronting decisions it made to force federal workers to work at the office." [CNN]

• Coronavirus Outbreak Gives Rise to More Complex Forms of Remote Work. "The coronavirus outbreak has spurred a rise in the use of virtual-meeting and work platforms that go beyond simple videoconferences, companies in China say. As the ability to travel and meet face-to-face is curtailed, people are using remote platforms to hold meetings, conduct training, and follow updates from co-workers, including their self-reported health status, according to interviews with workers in China." [WSJ]

• Can Coronavirus Victims Sue for Injuries? Could coronavirus victims have a personal injury lawsuit against the cruise ships, nursing homes or hospitals where they were infected or treated? Law.com reached out to Jack Hickey, of Miami's Hickey Law Firm. [Law.com]

 

 

PwC to Pay $11.6M, Make Hiring Commitments to Settle Age Discrimination Claims

PricewaterhouseCoopers has agreed to pay $11.625 million to settle a lawsuit claiming the global accounting firm discriminated against older applicants for certain positions, my colleague Ross Todd in California writes at Law.com.

The deal was outlined in court papers filed Tuesday in a federal court case in San Francisco. The settlement would require the accounting firm to commit to a hiring program that would allow candidates age 40 or older to apply for entry-level positions.

The programmatic relief, which the firm would be required to maintain for at least two years under the deal, includes hiring a consultant to advise on inclusivity and age bias in the hiring and training process, advertising positions to older workers, and to avoid asking graduation date information of applicants who have graduated from college before making a job offer.

Shannon Schuyler, PwC's chief purpose and inclusion officer said in a statement that the firm "is proud to affirm its commitment to identify and hire older workers." The commitments "will help PwC remain one of the most sought-after employers in the country," Schuyler said. "Our workforce represents the diversity of perspective, life experiences and backgrounds, and welcomes talented workers across the age spectrum."

Plaintiffs lawyers at Outten & Golden, AARP Foundation Litigation and Liu Law Firm indicated in the settlement papers that they intend to request a 35% fee, or $4,068,750.

Outten & Golden's Jahan Sagafi said: "We and AARP believe strongly that age discrimination in hiring, in particular, is a significant problem today and limits older workers access to jobs and contributes to unemployment problems. It also limits employers access to talent because wherever you have a company discriminating they are shooting themselves in the foot by limiting the pool of talent they can draw from."

 

 

Who Got the Work

>> K&L Gates partners John Cotter and Jennifer Nagle represented former CVS Pharmacy Inc. executive John Lavin, senior vice president for provider network services, in a noncompete dispute in the U.S. Court of Appeals for the First Circuit. The appeals court last week upheld a preliminary injunction enforcing a noncompete covenant. A team from Foley Hoag, including Michael Rosen, Richard Baldwin and Allison Anderson represented CVS.

>> Ashley Keller of Keller Lenkner argued for drivers for UberBLACK in a dispute over worker classification in the U.S. Court of Appeals for the Third Circuit. The appeals court, ruling this week for the drivers, this week vacated a trial court's summary judgment order and remanded for further proceedings. Keller faced off against Littler Mendelson's Robert Pritchard. My colleague P.J. D'Annunzio has more here at Law.com.

>> Dallas-based Littler Mendelson shareholder Jacqueline Carol Johnson, co-chair of the firm's unfair competition and trade secrets practice, advocated for Allegis Group Inc. and two subsidiaries, Aerotek and TEKsystems Inc. in a dispute over incentive payments. The U.S. Court of Appeals for the Fourth Circuit concluded a group of former employees were not entitled to retain certain incentive payments. Michael Tuteur of Foley & Lardner advised the former employees.

>> The 9th Circuit ruled against Hunton Andrews Kurth LLP client Employer Solutions Staffing Group in a dispute over an alleged failure to pay overtime to employees. Hunton partner Michael Shebelskie argued for ESSG. The U.S. Labor Department's Katelyn Poe argued for the government.

>> Morgan, Lewis & Bockius partner Kenneth Turnbull and associate Dana Brady are on the team defending WeWork in a gender and race discrimination suit brought by a former employee who was once recruited to work in the company's legal department. Seth Rafkin of New Jersey's Rafkin Esq. is counsel to the plaintiff. Read the complaint here.

>> Nelson Mullins Riley & Scarborough partner Michelle W. Johnson entered an appearance for Lucas Associates Inc. in a pending lawsuit over alleged employment discrimination under the ADA. The suit, in Georgia's Northern District Court, was filed by Buckley Beal LLP.

>> A former employee at the plaintiffs firm Pasternack Tilker Ziegler Walsh Stanton & Romano has sued the firm and three of its lawyers, alleging they engaged in or tolerated sexual misconduct from union officials and other client referral sources and then fired her for speaking out, my colleague Jack Newsham reports at Law.com. James Scalise, a Scarsdale, New York-based lawyer, represents the firm. Marc W. Garbar in New York represents the plaintiff.

 

 

Around the Water Cooler…

Courts and cases

PBS Scores $1.5 Milion Win at Tavis Smiley Trial. "PBS has prevailed on its claim that Tavis Smiley breached a morals clause. On Wednesday, a Washington, D.C., jury returned a verdict in favor of the public broadcaster and decided that the former late night talk show host should pay $1.486 million." [The Hollywood Reporter]

PBS was represented by a team from Morgan, Lewis & Bockius, including Grace Speights (above), who leads the firm's labor and employment practice. "In the midst of the #MeToo movement, he violated our morals clause… You can't have a consensual relationship between a manager and a subordinate because of the power dynamic," Speights argued at trial, according to a Variety report. From an NPR report on the verdict: "The win for PBS may prove to be significant for other companies facing workplace suits stemming from sexual-misconduct allegations, who are seeking to break ties with accused individuals." Here's a link to Smiley's complaint against PBS, filed in D.C. Superior Court.

10th Circuit Sent Judge Murguia to 'Medical Treatment' After First Sexual Harassment Claim Surfaced in 2016. The chief judge for the U.S. Court of Appeals for the Tenth Circuit declined to initiate a formal sexual harassment complaint in 2017 into then-U.S. District Judge Carlos Murguia after he completed "medical treatment" in response to the claims, according to an order released Tuesday, my colleague Jacqueline Thomsen reports. [Law.com]

4 Veteran Prosecutors File Gender, Age Discrimination Claims Against Contra Costa DA. Lawyers for Mary Knox, Rachel Piersig, Alison Chandler and Mary Blumberg, all deputy district attorneys in the office, filed a complaint in federal court last week claiming that the office has a "long and pervasive culture of systemic gender discrimination." [The Recorder] Read the complaint here.

Former Grammy Chief's New EEOC Complaint Knocks Proskauer Rose. Deborah Dugan's new complaint takes aim at Proskauer Rose, accusing the firm of "handpicking" a Southern California attorney to investigate workplace claims leveled against Dugan before she was fired while simultaneously handling a lawsuit the Recording Academy filed against the former executive. The firm did not immediately respond to requests for comment. Dugan was fired earlier this week. The Washington Post said organization leaders fired Dugan for "consistent management deficiencies and failures.'" [Law.com]

Workplace policies

Worker-Safety Expert Faced Pressure to Withdraw From Conference Panel After Releasing Report Critical of a Sponsor: Amazon. "A workers advocate faced pressure to withdraw from an American Bar Association conference panel on worker safety in the weeks after she helped author a report critical of Amazon, a sponsor of the conference, according to emails obtained by The Washington Post." [The Washington Post]

New Database Aims to Expose Companies That Make Employees Arbitrate Sexual Harassment Claims. "The activist behind the #GrabYourWallet campaign, which urged boycotts of retailers carrying products from Trump family businesses, has a new target: the confidential procedures used by many employers to bury sexual harassment claims—and that have come under increasing fire from activists." [The Washington Post]

How Bloomberg Buys the Silence of Unhappy Employees. "Bloomberg is not unique. In corporate America, in order to receive severance payments, fired or laid-off employees generally must sign agreements that require them to keep quiet about their experiences. Such agreements are deployed for a range of reasons, including to protect intellectual property, to prevent departing employees from publicly vilifying the company and to confidentially settle claims of discrimination or harassment." [NYT]

Bloomberg Releases Woman From Nondisclosure Agreement Over Discrimination Suit. "A woman who says Michael Bloomberg told her to terminate her pregnancy while she worked for his financial-data company the 1990s has been released from a nondisclosure agreement that prevented her from discussing the allegations, her lawyer said Friday." [WSJ] More at The New York Times here: How Bloomberg Buys the Silence of Unhappy Employees.

Companies Step Up Efforts to Keep Workers From Quitting. "Some companies are trying to keep hold of employees with incentives besides outright wage increases, including clearer paths to promotion, more flexible work arrangements and benefits aimed at improving work-life balance." [WSJ]

Federal agencies

Unions Push the FTC to Investigate Amazon for 'Anti-Competitive Practices.' "The 28-page petition, filed Thursday, asks the FTC to look into Amazon's "immense and growing influence" in the economy. The group includes the International Brotherhood of Teamsters, the Communications Workers of America, the United Food and Commercial Workers International Union and the Service Employees International Union." [CNBC]

California AB5

Lyft and Uber Start Spending to Unseat California Legislators. "After losing a difficult battle in Sacramento last year over a law that could classify their drivers as full-time employees, Lyft Inc. and Uber Technologies Inc. are signaling they are ready to spend big against California legislators who opposed them. Lyft has placed $2 million in a campaign account taking aim at Tyler Diep, an Orange County assemblyman who was the sole Republican to vote for the law, known as AB5." [WSJ]

A Flood of Proposed Changes to California's AB 5 Awaits State Lawmakers. "In all, 34 separate pieces of legislation related to AB 5 were introduced in the Legislature in the last seven weeks. Most of the bills would expand the list of occupations not required to be considered an employee of a business and exempt from mandatory payroll taxes and workplace benefits." [Los Angeles Times] Fisher Phillips' Benjamin Ebbink looks at some of the bills here.