Labor of Law: 'Essential Business' Or Not? | DOJ Pitches Bias Case to SCOTUS | 7th Circuit: Listen to Us | Who Got the Work: New Postmates Suit
Welcome to Labor of Law, and hope you are safe and health. On tap this this week: 'Essential business' or not? DOJ pitches bias case to SCOTUS. 7th Circuit reminds judges: Listen to us. Plus: Who Got the Work: new Postmates suit seeks to compel individual arbitration.
March 26, 2020 at 12:00 PM
12 minute read
Welcome to Labor of Law, our weekly snapshot of news and trends affecting the L&E community. Hope you, family, friends and colleagues are staying safe and healthy amid the pandemic. Thanks for reading, and your feedback is appreciated. I'm Mike Scarcella in Washington, and you can reach me at [email protected] and on Twitter @MikeScarcella.
What's Essential, And Not So Much, in Virus Era
Tens of millions of workers across the country are either working from home or out of work altogether, as companies grapple with the coronavirus pandemic. We learned just a few hours ago that a record 3.3 million U.S. workers sought unemployment benefits last week. Many states have issued orders shuttering nonessential businesses amid a nationwide effort to reduce the spread of the deadly virus.
So what is a nonessential business? The definition can vary from state to state, and even city to city, my colleague Sue Reisinger reports at Law.com. As The Washington Post put it in this piece: "Over the past few weeks, the nation's mayors and governors have been forced to contemplate a philosophical question: What in life is truly essential?"
"In Delaware, florists count, but not dog groomers. Arizona considers golf courses and gun stores to be indispensable. And Athens, Ga., has shuttered vape shops, but allowed lawn maintenance services and sporting goods shops to remain open amid the spread of the novel coronavirus," the Post reported.
Major U.S. firms daily are issuing guidance memos about state-by-state developments. Just a snippet: Seyfarth Shaw posted here on the Massachusetts order temporarily closing nonessential businesses. Ogletree, Deakins, Nash, Smoak & Stewart has a spotlight here on Maryland's order. Morgan, Lewis & Bockius has a webinar looking at workforce changes. Other national labor and employment firms, including Littler Mendelson and Jackson Lewis have assembled extensive COVID-19 practices
Atlanta-based labor and employment firm Fisher & Phillips launched a task force to address an issue that didn't even exist until last week: What companies qualify for the "essential business" exemption from rapidly proliferating shelter-in-place orders? The firm has a page dedicated to "essential business designation." Roger Quillen, the firm's chairman, said "our phones were burning up" last week with calls from worried clients asking whether they could stay open.
>> For your radar: The EEOC on Friday afternoon is planning to post a webinar devoted "to answering questions submitted in advance about how to respond to the COVID-19 pandemic in light of the federal employment nondiscrimination laws. The prerecorded webinar will only address the ADA, the Age Discrimination in Employment Act (ADEA), Title VII, and GINA, as these are the laws the EEOC enforces."
>> More reading here at Law.com: General Counsel Need to Consider WARN Act for COVID-19 Layoffs. And over at ALM publication Benefits Pro, lawyers from Husch Blackwell have a piece titled: COVID-19 Pandemic: Key Employee Benefits and Compensation Issues to Consider. And new at The Washington Post: What Counts As Essential Business in 10 U.S. Cities
Justice Dept. Wants SCOTUS to Take Bias Case
The U.S. Justice Department recently filed papers in the Supreme Court urging the justices to take up a race-bias case. The court had asked the solicitor general's office for its views on the dispute, which tests the scope of protections in Title VII of the Civil Rights Act of 1964.
The petitioner, David Peterson, an electrician on an offshore oil platform, alleged he and other "black employees had to work outside and were not permitted water breaks, while the white employees worked inside with air conditioning and were given water breaks," according to court records.
The U.S. Court of Appeals for the Fifth Circuit ruled against Peterson. The court concluded federal law "strictly construes adverse employment actions to include only 'ultimate employment decisions,' such as 'hiring, granting leave, discharging, promoting, or compensating.'"
The Justice Department and EEOC, which was on the government's brief, challenge the Fifth Circuit's ruling. "The startling result in this case—that an employer may racially segregate its workforce by requiring black employees to work outside in the summer heat while white employees work indoors with air conditioning—underscores the defects in the court of appeals' position," the DOJ's amicus brief said.
Peterson is represented at the Supreme Court by Pamela Karlan of Stanford Law School. Read Karlan's petition here. William Helfand of Lewis, Brisbois, Bisgaard & Smith is counsel to Linear Controls. Helfand's opposition brief is here.
7th Circuit Reminds Trial Judges: Listen to Us
The U.S. Court of Appeals for the Seventh Circuit recently revived a sex discrimination claim involving "an accomplished runner and an experienced running coach," as the court described the plaintiff.
"The district court appears to have erred by doing what we have repeatedly said a court should not: 'asking whether any particular piece of evidence proves the case by itself,' rather than aggregating the evidence 'to find an overall likelihood of discrimination,'" Judge David Hamilton wrote for the majority. Hamilton was joined by Judge Joel Flaum. Judge Kenneth Ripple dissented.
And more: "We conclude with a few observations on the district court's analysis. First, as a general matter it cannot be emphasized too strongly: 'Evidence must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself … . Evidence is evidence. Relevant evidence must be considered and irrelevant evidence disregarded,' and the case must be assessed for an 'overall likelihood of discrimination.'"
Ripple, in his dissent, said the would-be employee had not "come forward with evidence from which a reasonable jury could conclude that, had she been male, she would have been awarded either of the positions for which she applied."
Jared Vasiliauskas of Power & Cronin argued for the plaintiff, and Jacquelyn Pillar of Crist, Sears & Zic argued for the employer.
Who Got the Work
>> Orrick, Herrington & Sutcliffe appellate partner Eric Shumsky argued for Dish Network Corporation in an NLRB case in the U.S. Court of Appeals for the Fifth Circuit. Judge Andrew Oldham writes in the court's ruling: "DISH negotiated with a labor union for more than four years. Eventually, DISH got tired and determined the parties were at an impasse. The question presented is whether the National Labor Relations Board had substantial evidence to gainsay DISH's impasse determination and penalize the employer for refusing still more years of negotiation. It did not." David Casserly argued for the National Labor Relations Board. Matthew Holder argued for intervenor AFL-CIO Communications Workers of America.
>> Lawyers from Gibson, Dunn & Crutcher—including partners Theane Evangelis and Michele Maryott—are representing Postmates Inc. in a new suit in the U.S. District Court for the Central District of California that seeks to enforce individual arbitration agreements with more than 10,000 couriers. "Postmates seeks to forestall abusive litigation tactics by certain plaintiffs' attorneys who repeatedly file thousands of arbitration demands at the same time," the complaint said.
>> Jenner & Block partner Craig Martin successfully argued for Northwestern University in an ERISA dispute in the U.S. Court of Appeals for the Seventh Circuit. A panel this week upheld a trial judge who had found no breach of fiduciary duty. Michael Wolff of Schlichter, Bogard & Denton argued for the beneficiaries.
>> Lawyers from Outten & Golden and Shavitz Law Group are representing former campaign workers for Mike Bloomberg who contend they were promised employment until November. Read the complaint here in the U.S. District Court for the Southern District of New York. Separately, the firms Gupta Wessler and Emery Celli Brinckerhoff & Abady represent former Bloomberg staffers in Georgia, Washington and Utah who lodged a civil complaint. Politico has more here, the NYT here and WSJ here.
>> Olgetree's Amanda Couture successfully advocated for Dollar General in a disability discrimination case in the Seventh Circuit. The court on Wednesday upheld summary judgment in favor of the retail store. Jeffrey Macey of Macey Swanson represented the former employee.
>> Foley & Lardner attorneys Bennett Epstein and Larry Perlman are representing Havas Media Group USA in a pending lawsuit over alleged employment discrimination under the ADA. The action was filed in February in Southern District of Florida by attorney Richard Caldwell.
>> "A former intern of Indian descent is suing Transamerica Financial Advisors for alleged discrimination based on her gender and national origin," Financial Advisor IQ reports. The firm Florin Gray Bouzas Owens represents the plaintiff. Read the complaint in U.S. District Court for the Middle District of Florida.
Around the Water Cooler…
Covid-19
The 12 Most Annoying Co-workers You Face on Zoom. "Those regular working meetings—the type where we sat six to a table rather than six feet apart—are so early 2020. Now, in the age of coronavirus, we convene on Zoom (or fill in your video-conferencing software of choice here) and look at each other as if we live in the title sequence of 'The Brady Bunch.'" [Boston Globe] More reading: My colleague Jenna Greene has a piece at Law.com titled Hello? Do You See Me? Litigating in the Age of Zoom. And here at NYT: The Dos and Don'ts of Online Video Meetings.
Brad Karp: The Legal Community Must Protect Workers and Small Businesses From Coronavirus Fallout. "The need for help is staggering. The numbers here speak for themselves. More than 50 million Americans earn "low wages," defined as median hourly earnings of $10.22 or less. More than half of all U.S. adults live paycheck to paycheck and do not have an emergency fund covering three months of expenses." [The American Lawyer]
Uber CEO Asks Trump to Support Gig Workers Impacted by the Coronavirus. "Uber has spent much of its history fighting calls for drivers on its platform to be reclassified as employees rather than independent contractors. Such a change would require Uber to take on additional expenses to protect its workers, like healthcare costs. The significance of these protections has become increasingly clear as the health and economic crisis caused by the pandemic rages on. Now, rather than give into attempts to reclassify workers, Uber is turning to the government to plead for help on their behalf." [CNBC]
Frequent Uber and Lyft Foe Says Misclassification of Drivers Is Worsening the Global Health Crisis. Lawyers in two worker misclassification class action suits against Uber and Lyft allege that the companies are exacerbating the coronavirus pandemic. [The Recorder]
If Robots Steal So Many Jobs, Why Aren't They Saving Us Now? "Our economy still craters without human workers, because the machines are far, far away from matching our intelligence and dexterity. You're more likely to have a machine automate part of your job, not destroy your job entirely." [Wired]
Working From Home Means Working Longer Hours for Many. "Those in the U.S. have logged on for an additional three hours per day compared to patterns seen before March 11—a 40% jump—according to data from virtual private network service provider NordVPN Teams." [Bloomberg]
Is the Coronavirus Shaping the Future of How We Work? "The coronavirus will have a silver lining if it serves as the impetus for constructive upheaval, in the way that the sudden forced reliance on telecommunication is already having an impact." [NYT]
Mass Telework During Virus Pandemic Sets Stage for Wage Battles. "Mass telework blurs the lines around when an hourly worker punches in and punches out, potentially sparking wage and hour battles between employees who typically work in the office and their employers." [Bloomberg Law]
Courts and cases
Race Bias Harder to Prove Under High Court's Comcast Ruling. "Plaintiffs suing for race discrimination under a post-Civil War law must meet a stricter standard to prove their claims after the U.S. Supreme Court unanimously ordered a lower court to reconsider media mogul Byron Allen's race bias lawsuit against Comcast Corp." [Bloomberg Law] More here at the NLJ.
Former N.J. public defender awarded $500K over gender discrimination. "A jury has awarded a former city public defender $500,000 after she alleged gender discrimination over her contract's non-renewal. Joy Spriggs was hired as a public defender in 2001 and served in that position for 15 years, receiving multiple contract renewals, until 2016 when she was informed by the city's attorney that she would not have her contract renewed, according to court documents." [USA Today Network]
Notable Moves and More
>> Baker McKenzie has hired a trio of employment litigators from Morgan, Lewis & Bockius' New York and Philadelphia offices, as demand for work in the sector is red-hot amid coronavirus concerns and mass layoffs. Blair Robinson, Paul Evans and Jeff Sturgeon have all departed Morgan Lewis' 375-attorney-strong labor, employment and benefits group for Baker McKenzie's New York office.
>> Fisher Phillips said it hired Letitia Silas as a partner in the firm's Bethesda, Maryland, office. Silas arrives from Howard University, where she had been senior associate general counsel and director of labor relations. "Letitia's firsthand knowledge from her experience in-house, in private practice and at the NLRB gives her a unique understanding and deep insight into the growing business challenges our clients face when managing their workforces," Steven Bernstein and Todd Lyon, co-chairs of the firm's labor relations practice, said in a statement.
>> The U.S. Equal Employment Opportunity Commission appointed Stan Pietrusiak as the director of the agency's Office of Equal Opportunity. Pietrusiak was a senior associate at Bracewell LLP from 1999 to 2008. Pietrusiak first started at the EEOC as an attorney with the EEOC's internal litigation services department in 2008.
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Law Firms Mentioned
- Lewis Brisbois Bisgaard & Smith
- Littler Mendelson
- Morgan, Lewis & Bockius
- Jackson Lewis P.C.
- Fisher Phillips
- Baker McKenzie
- Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
- Seyfarth Shaw
- Husch Blackwell
- Jenner & Block
- Foley & Lardner
- Outten Golden
- Gibson, Dunn & Crutcher
- Orrick, Herrington & Sutcliffe
- Bracewell
Trending Stories
Who Got The Work
J. Brugh Lower of Gibbons has entered an appearance for industrial equipment supplier Devco Corporation in a pending trademark infringement lawsuit. The suit, accusing the defendant of selling knock-off Graco products, was filed Dec. 18 in New Jersey District Court by Rivkin Radler on behalf of Graco Inc. and Graco Minnesota. The case, assigned to U.S. District Judge Zahid N. Quraishi, is 3:24-cv-11294, Graco Inc. et al v. Devco Corporation.
Who Got The Work
Rebecca Maller-Stein and Kent A. Yalowitz of Arnold & Porter Kaye Scholer have entered their appearances for Hanaco Venture Capital and its executives, Lior Prosor and David Frankel, in a pending securities lawsuit. The action, filed on Dec. 24 in New York Southern District Court by Zell, Aron & Co. on behalf of Goldeneye Advisors, accuses the defendants of negligently and fraudulently managing the plaintiff's $1 million investment. The case, assigned to U.S. District Judge Vernon S. Broderick, is 1:24-cv-09918, Goldeneye Advisors, LLC v. Hanaco Venture Capital, Ltd. et al.
Who Got The Work
Attorneys from A&O Shearman has stepped in as defense counsel for Toronto-Dominion Bank and other defendants in a pending securities class action. The suit, filed Dec. 11 in New York Southern District Court by Bleichmar Fonti & Auld, accuses the defendants of concealing the bank's 'pervasive' deficiencies in regards to its compliance with the Bank Secrecy Act and the quality of its anti-money laundering controls. The case, assigned to U.S. District Judge Arun Subramanian, is 1:24-cv-09445, Gonzalez v. The Toronto-Dominion Bank et al.
Who Got The Work
Crown Castle International, a Pennsylvania company providing shared communications infrastructure, has turned to Luke D. Wolf of Gordon Rees Scully Mansukhani to fend off a pending breach-of-contract lawsuit. The court action, filed Nov. 25 in Michigan Eastern District Court by Hooper Hathaway PC on behalf of The Town Residences LLC, accuses Crown Castle of failing to transfer approximately $30,000 in utility payments from T-Mobile in breach of a roof-top lease and assignment agreement. The case, assigned to U.S. District Judge Susan K. Declercq, is 2:24-cv-13131, The Town Residences LLC v. T-Mobile US, Inc. et al.
Who Got The Work
Wilfred P. Coronato and Daniel M. Schwartz of McCarter & English have stepped in as defense counsel to Electrolux Home Products Inc. in a pending product liability lawsuit. The court action, filed Nov. 26 in New York Eastern District Court by Poulos Lopiccolo PC and Nagel Rice LLP on behalf of David Stern, alleges that the defendant's refrigerators’ drawers and shelving repeatedly break and fall apart within months after purchase. The case, assigned to U.S. District Judge Joan M. Azrack, is 2:24-cv-08204, Stern v. Electrolux Home Products, Inc.
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