Welcome back to Labor of Law, our weekly look at news and trends affecting the L&E community. On the clock this week: Coronavirus: L&E Headlines • Docket Watch: Pay-Equity Headed to SCOTUS • Federal Judge Slams 'Epic Systems' • DOJ Watchdog's Workplace Romance Guidance • Who Got the Work: US Soccer hires Latham & Watkins

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.

Docket Watch: Pay Equity Headed to SCOTUS

The Ninth Circuit's recent decision that said employers can't use prior salary history to justify compensation discrepancies between male and female employees is headed to the U.S. Supreme Court. Lawyers for Fresno County, sued over claims it was paying a math consultant thousands of dollars less than a male colleague, announced their plans in a new court filing.

"There is—at least—a reasonable probability that the Supreme Court will grant certiorari in this case, which already attracted the court's attention," Jones Day partner Shay Dvoretzky said in the filing in the Ninth Circuit. The justices indeed showed interest in the Fresno case—but the court, in that earlier ruling, invalidated a Ninth Circuit decision because it had incorporated the vote of a judge who died before the opinion was released. The justices didn't reach the merits of the dispute.

Dvoretzky told the Ninth Circuit, in a request to stay the court's mandate (it was granted): "The en banc majority's refusal to allow the use of prior pay in any circumstance—even when justified on business grounds, or when used in conjunction with another factor—puts this circuit apart from every other circuit to consider the issue."

Meanwhile, the EEOC on Wednesday announced a new pay-equity suit against the Michigan-based nonprofit health system Covenant HealthCare. The suit in the Eastern District of Michigan alleged Covenant was paying a female employee a lower wage than two male co-workers who hold the same position.

"Employers cannot continue to discriminate against women and perpetuate illegal traditions but must pay female employees equal pay for equal work," EEOC trial attorney Karen Brooks said in a statement. "The EEOC will litigate, when necessary, to ensure that employers recognize this basic principle."

>> Playing out soon in the Ninth Circuit: We're also watching out for an upcoming appeal in the Ninth Circuit testing California's AB5, the landmark labor bill that makes it harder for companies to classify their workers as independent contractors. Gibson, Dunn & Crutcher's Theane Evangelis noted an appeal this week in the Uber and Postmates suit challenging the denial of a preliminary injunction.

Wisconsin Federal Judge Assails Roberts Court's Rulings

A new essay from U.S. District Judge Lynn Adelman of Wisconsin was making the rounds in legal circles this week. Adelman's article—titled "The Roberts Court's Assault on Democracy"—broadly argues Chief Justice John Roberts Jr. and conservative members of the court have issued rulings on civil rights, labor and other areas that undermine democracy. Adelman was praised, and criticized, for speaking out.

Here's a snippet of what Adelman said on the labor and employment front, including remarks about the court's Epic Systems and Janus v. AFSCME rulings from 2018:

>> "Nor does the Roberts Court treat non-union workers any better than members of unions. Rather, the court systematically rules against both entities that represent ordinary Americans and ordinary Americans themselves."

>> "The Roberts Court had already ruled that companies could force consumers out of class actions and into arbitration, and in Epic Systems it did the same thing to workers. The case will have long-lasting implications for employees who lose some $3 billion in legally owed wages every year."

>> "A Supreme Court interested in strengthening American democracy might consider the wisdom of further weakening the labor movement. Sadly, this is not the Roberts Court's approach."

Read more here—Adelman spoke with my colleague Tony Mauro—at Law.com.

DOJ's IG Makes Workplace Relationship Recommendations

The U.S. Justice Department's inspector general this week issued a memorandum making recommendations about relationships between high-level supervisors and subordinates. The inspector general, Michael Horowitz, said his office has noted an increasing number of allegations of inappropriate workplace relationships.

"Some components prohibit such relationships, some components do not have policies regarding such relationships, and most other components permit them but impose obligations on the supervisor, and in some instances the subordinate, to report them so that the supervisor can be recused from personnel decisions involving the subordinate," Horowitz wrote.

Horowitz's recommendations:

1. "The Department should consider these differing policies governing supervisor-subordinate relationships and determine whether to adopt a consistent policy across all Department components."

2. "The Department should assess whether a subordinate should be required to report a romantic or intimate relationship with his or her supervisor."

Who Got the Work

>> The U.S. Soccer Federation says it's hiring Latham & Watkins "to join and guide our legal strategy going forward," amid fallout from a court filing made by lawyers from Seyfarth Shaw recently in the pay-equity case in Los Angeles federal district court. "The president of the U.S. Soccer Federation issued an apology Wednesday evening for a recent court filing that argued players for the women's national team have less 'skill' than their male counterparts," The Washington Post reports. "The filing, part of a legal defense against a gender discrimination lawsuit brought by members of the 2019 women's World Cup team, also claimed that the men's national team players have more 'responsibility' to the reputation of the USSF, making them more valuable employees." Winston & Strawn represents the women's national team. Read more here at Law.com.

>> Wiley Rein LLP is the plaintiff in a new FOIA suit against the U.S. Labor Department. Partner Richard W. Smith filed the complaint in Washington's federal trial court on behalf of the firm and the U.S. battery manufacturing industry. "Wiley Rein seeks merely a copy of the Compliance Action Report and narrative summary for specific investigations into certain battery manufacturers," the firm said in its complaint.

>> Greenberg Traurig shareholder Gregory Casas, in Austin, Texas, was counsel to Whole Foods Market Group Inc. in a dispute in the D.C. Circuit over claims the retailer manipulated its incentive-based bonus program. The appeals court upheld a lower court decision refusing to dismiss a class action against Whole Foods based on the Supreme Court's 2017 holding in Bristol-Myers Squibb v. Superior Court of California. Plaintiffs attorney Matthew Wessler, a principal at Gupta Wessler, argued for the Whole Foods employees. My colleague Amanda Bronstad has more here at The National Law Journal.

>> A three-judge panel of the U.S. Court of Appeals for the Second Circuit said that Gebrial Rasmy, an Egyptian Coptic Christian and formerly a longtime former banquet server at JW Marriott Essex House on Central Park South, could proceed with claims that religious and ethnic insults by his coworkers had violated Title VII of the Civil rights Act of 1964. Stephen Bergstein of Bergstein & Ullrich LLP represented Rasmy. Mark Saloman of FordHarrison LLP represented Marriott International. Read the decision here.

>> The U.S. Court of Appeals for the Sixth Circuit on Wednesday revived an age-discrimination case. Raymond Sterling and Brian Farrar of Michigan-based Sterling Attorneys advocated for the former employee. Lauren Saad of Garan Lucow Miller represented the employer, an auto dealer. "There are genuine issues of material fact regarding pretext that preclude summary judgment," the Sixth Circuit panel said in its ruling.

>> Bredhoff & Kaiser is representing the AFL-CIO in a new suit against the National Labor Relations Board in U.S. District Court for the District of Columbia. The complaint alleged the board's 2019 election rule "will make it more difficult for AFL-CIO unions to obtain elections, will delay those elections, will prejudice unions' ability to campaign in those elections [and] will delay the counting of ballots after those elections." Bloomberg Law has more here.

>> Meanwhile, "the United Auto Workers has hired an outside lawyer to investigate allegations that a member of the union's executive board sexually harassed female staffers under his supervision, according to people familiar with the inquiry," The Wall Street Journal reports. UAW told the Journal the union had a lawyer at Bredhoff & Kaiser.

Around the Water Cooler

Coronavirus

Don't Ask Employees If They Have Covid-19, and Other HR Tips. "An employer can suggest an employee with visible illness leave the workplace, but should avoid asking too many specifics that might violate a worker's rights, such as the Americans with Disabilities Act, Clayton said. Employers can set specific guideline for when a worker can return, such as how long it's been since the last fever, she said." [Bloomberg]

Corporate America Races to Respond to a Crisis That Upends Work. "Those events helped prompt [Haynes and Boone LLP] to roll out even more new technology aimed at making it easier for attorneys to work across offices at any time. Now, 80% of Haynes and Boone's roughly 600 lawyers have a tech setup at home that is identical to the one they have at work, down to a four-digit phone extension, videoconferencing capabilities and protected access to legal documents." [WSJ]

'Can everyone mute?' Coronavirus means we must telecommute. We're not ready. "Going virtual on this scale is a step into uncharted territory—and a step that more and more businesses are taking in response to COVID-19." [Los Angeles Times]

Trump Administration Now Wants Hundreds of Thousands of Federal Workers to be Ready to Telework to Limit Coronavirus Spread. "The Trump administration is racing to develop contingency plans that would allow hundreds of thousands of employees to work remotely full time, an extreme scenario to limit the coronavirus that would test whether the government can carry out its mission from home offices and kitchen tables." [The Washington Post]

Companies Are Putting Out Hand Sanitizer. But for Years, Many Have Campaigned Against Sick Pay. "Although most Americans say businesses should offer sick pay, at least a dozen states, including Florida and much of the Southeast, have passed legislation since 2011 to block efforts to require medical leave. Even in liberal-leaning states that have passed sick pay requirements, some companies sidestep the requirement by counting their workers not as employees, but as contractors." [The Washington Post]

'It Makes Me Very Angry': Coronavirus Damage Ripples Across the Workforce. "Americans are going home—and creating an economic train wreck. The coronavirus outbreak has U.S. companies starting to shutter offices and send workers home through layoffs, furloughs or directives to telecommute until health risks from the spreading virus recede." [Politico]

Walmart, Apple and Olive Garden Are Among Major Employers Updating Sick Leave Policies as Coronavirus Cases Spread. "Walmart, Uber and Apple are among those announcing new policies that they say are designed to keep employees and customers safe from the coronavirus. Here is a look at major employers that have so far adapted their leave policies." [The Washington Post]

Courts and cases

How a Labor Defense Lawyer and #MeToo Won $1.5M for PBS. It was a trial to remember for Morgan, Lewis & Bockius partner Grace Speights, lead defense attorney for PBS against Tavis Smiley—and not just because she defeated a million-dollar labor and employment claim against her client in a high-profile case. She also won a million and a half—and she did it with a hundred-year-old movie morals contract clause that no one seems to remember ever using before. "This was a landmark case, both in terms of the precedent-setting nature of testing the morals clause in contracts before a jury, and by the fact that our client was the one being sued by someone accused of sexual misconduct," Speights said. [NLJ]

Remaining Plaintiffs in 'Mommy Track' Suit Against Morrison & Foerster Fight Requests for Records From Freshfields, Linklaters. Two former Morrison & Foerster lawyers who sued the firm claiming it discriminates against pregnant women and new mothers are seeking to block Morrison & Foerster's request for employment records at other law firms where they've worked. [The Recorder]

Miami Heat's Defense Against FMLA Suit: Former In-House Lawyer Was 'Toxic' and 'Disruptive'. In a motion to compel arbitration filed March 6 in U.S. District Court for the Southern District of Florida, Miami Heat's lawyers at Greenberg Traurig describes ex-counsel Vered Yakovee as having been a "disruptive, toxic, and sub-standard employee who single-handedly consumed more attention from human resources and senior management than any other individual employee." Yakovee's attorney, Erika Rotbart of Deutsch Rotbart & Associates in Boca Raton, Florida, responded to the Heat's arguments Monday. "The Heat's allegations are not only inaccurate but yet another attempt to cast Ms. Yakovee in a poor light and are further evidence of the Heat's bad acts and continued attempts to bully my client," [Law.com]

U.S. Soccer, Women's Team Renew Legal Fight Over Pay Bias. "The U.S. Soccer Federation and members of the women's national team renewed their equal pay fight in federal court in Los Angeles, with the federation saying the players didn't even try to prove that they're paid less than the men's team. The players counter that U.S. soccer continues to pursue a 'total remuneration' argument that has already been rejected by the court." [Bloomberg Law]

Federal agencies

EEOC Votes to Scale Back General Counsel's Litigation Powers. "EEOC leadership has voted to limit the agency general counsel's authority to unilaterally decide the kinds of discrimination cases it brings against employers, a move that follows an earlier effort to eliminate those decision-making powers." [Bloomberg Law]

Notable Moves & More

• Barnes & Thornburg said it has hired Michael Nader as an employee benefits and executive compensation partner in the Fort Wayne office. Nader was formerly a partner at Faegre Drinker.

• Freshfields Bruckhaus Deringer said Lori Goodman is joining the firm in New York as a partner in the U.S. executive compensation and employee benefits practice. Goodman arrives from Latham & Watkins, where she had been a partner.

• Fisher Phillips said it has hired Kerry Martin as a partner in Phoenix, expanding the firm's labor relations practice. Martin joins the firm from Ryley Carlock & Applewhite.

• Polsinelli has boosted its Los Angeles office, adding employment litigator Alex Polishuk as counsel and Keia Atkinson as associate.