Welcome to Labor of Law, and we hope you, family, friends and colleagues are safe in the virus era. On tap this week: EEOC's Covid-19 Q&A. Seyfarth Withdraws from US Soccer defense. There's a new pay-equity case at the US Supreme Court. A Postmates arbitration fight gets personal. Scroll down for Who Got the Work. Haven't set up a home office? It's not too late. Some tips, from CNN. And a few photos over at Washingtonian of home offices around this town.

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.

Is COVID-19 Recognized As a Disability Under the ADA?

The coronavirus pandemic has upended workplaces across industries, flooding labor and employment lawyers with questions about how managers and employees can navigate the crisis.

The U.S. Equal Employment Opportunity Commission collected and responded to hundreds of questions about obligations and accommodations under federal workplace laws. The agency recently posted a webinar responding to inquiries about privacy and disclosure, national origin discrimination, pregnant employees and other matters. (You can watch the video here.)

Three EEOC lawyers—Carol Miaskoff, associate legal counsel; Sharon Rennert, senior attorney adviser; and Jeanne Goldberg, acting assistant legal counsel—offered the agency's guidance on nearly two dozen questions addressing the Americans with Disabilities Act, Title VII and the Age Discrimination in Employment Act. The discussion didn't touch on other federal laws the EEOC doesn't enforce, including the Fair Labors Standards Act and the Family Medical Leave Act.

One of the most frequent questions asked: Is COVID-19 recognized as a disability?

"This is a very new virus, and, while medical experts are learning more about it, there is still much that is unknown," Rennert said. "Therefore, it is unclear at this time whether COVID-19 is or could be a disability under the ADA. Regardless of whether COVID-19 is or could be a disability, remember that an employer may bar an employee with the disease from entering the workplace at this time because of direct threat. Employers should continue to take actions involving persons with COVID-19 or who may have COVID-19 based on the most current guidance available from the CDC, and other public health authorities."

EEOC enforcers have noted the reported rise in reports of bias and harassment involving Asian American workers and other people of Asian descent. "The EEOC urges employers and employees to be mindful of instances of harassment, intimidation, or discrimination in the workplace and to take action to prevent or correct this behavior," EEOC Chair Janet Dhillon (above) said in a statement last week.

Meanwhile, Amazon is planning to deploy masks and temperature checks across warehouses and Whole Foods stores, Reuters reports.

"The company will also use machine-learning software to monitor building cameras and determine whether employees are staying at safe distances during their shifts, or whether they are often huddled too close together," the report stated.

>> More reading at Law.com: Laying Off or Shutting Down? Here's What You Should Know From the NLRB General Counsel Over At the NYT: How Much Should the Public Know About Who Has the Coronavirus? Littler Mendelson has a survey here looking at workplace safety, leave and sick pay, discrimination, furloughs and other matters.

Docket Watch: New Pay-Equity Petition at SCOTUS; DOL Responds to Oracle; Plaintiffs Seek $6M in Fees in MIT ERISA Case

Updates in a few big cases that we're watching…

>> Prior salary can justify gender pay differences, U.S. Supreme court is told. Employers can lawfully use prior salary considerations to defend paying male and female workers differently for the same work, lawyers from Jones Day, including partner Shay Dvoretzky (above) asserted in a new petition at the U.S. Supreme Court testing the scope of the federal Equal Pay Act. The petition, docketed Friday in the case Fresno County Superintendent of Schools v. Rizo, challenges a ruling by the en banc U.S. Court of Appeals for the Ninth Circuit. The divided appeals court in February said employers cannot rely on prior salary to justify gender disparities for employees performing the same work. Read more here on the petition at the National Law Journal.

>> The U.S. Labor Department has formally responded to Oracle's lawsuit accusing the agency of a "power grab." The complaint, filed last year in Washington's federal trial court, raised a constitutional challenge to the Labor Department's Office of Federal Contract Compliance Programs. Oracle's lawyers at Orrick, Herrington & Sutcliffe want a judge to curtail the power of an agency enforcer to investigate and prosecute workplace bias claims—as the technology company wages a long and bitter fight to thwart Obama-era allegations of workplace bias. The DOL's case against Oracle remains pending before an administrative law judge.

The agency's response to Oracle's suit said in one part: "Oracle is currently the subject of ongoing enforcement proceedings brought by OFCCP based on allegations that Oracle discriminated against female, Asian, and African American employees in compensation. Oracle may honor its contracts and submit to OFCCP's administrative proceedings—including the ability to obtain a final administrative order from Labor that is subject to judicial review—or remove itself from OFCCP's jurisdiction by giving up its covered federal contracts. But Oracle instead is pursuing a third option. Through this lawsuit, Oracle is attempting to keep the benefits of its bargained-for government contracts while challenging the equal-opportunity requirements that accompany them."

>> The plaintiffs lawyers in an ERISA suit against the Massachusetts of Technology are seeking $6.03 million in legal fees—about 33 percent of the monetary recovery—and about $522,000 in litigation expenses. "Class counsel bore tremendous risk in order to benefit the class. In spite of this risk, class counsel leveraged their experience in excessive fee litigation to achieve an efficient resolution of this matter, thereby avoiding the delay and expense and substantial risk of non-recovery for the class," the plaintiffs' lawyers said in their new filing. Schlichter Bogard & Denton was lead counsel for the plaintiffs. Lawyers from O'Melveny & Myers and Goodwin Procter have counseled MIT. Meanwhile… The U.S. Supreme Court this week denied the University of Pennsylvania's petition in an ERISA case from the Third Circuit. Schlichter Bogard was counsel for the plaintiffs; Morgan, Lewis & Bockius represented the university.

In Postmates Case, Things Get Personal Between Gibson Dunn and Keller Lenkner

Postmates Inc. and its Gibson, Dunn & Crutcher lawyers have sued more than 10,000 of the delivery company's couriers who are represented by Chicago plaintiffs firm Keller Lenkner claiming they're filing arbitration demands en masse to "extract a ransom-style settlement," my colleague Alaina Lancaster in San Francisco reports.

The Postmates complaint in U.S. District Court for the Central District of California does not intend to seek damages or evade the costs of arbitration fees.

"Rather, Postmates seeks to forestall abusive litigation tactics by certain plaintiffs' attorneys who repeatedly file thousands of arbitration demands at the same time, including on behalf of individuals who are not actually represented by these attorneys or indisputably have no claims; insist that millions of dollars in arbitration filing fees be paid up front; and demand that all arbitrations be administered together and proceed simultaneously—all to use the threat of massive arbitration filing fees as leverage to extract the highest possible payout from corporate defendants," Gibson Dunn's Theane Evangelis wrote.

Keller Lenkner's Travis Lenkner told ALM that Postmates complaint is frivolous, but "that's nothing new." Lenkner said: "Another federal court is considering whether to hold Postmates in civil contempt for taking the same meritless positions it does here. The company is desperate and will stop at nothing to avoid its own arbitration clause. We look forward to responding in due course."

Who Got the Work

>> Latham & Watkins is now representing U.S. Soccer Federation alone in the pay-equity case filed by members of the women's soccer team. Lawyers from Seyfarth Shaw, which had been lead counsel, filed a notice of withdraw on Wednesday in U.S. District Court for the Central District of California. The Seyfarth team came under criticism after arguing in a court filing that the U.S. Women's National Team has less "skill" than the men's team. The Latham team includes New York-based partner Jamie Wine. Read more here at Law.com.

>> Baker & Hostetler partners Joseph Devine and Samuel Endicott represented CSX Transportation Inc. in a discrimination case at the U.S. Labor Department. The administrative review board last week upheld the dismissal of the complaint.

>> Thompson & Coburn's Jeffrey Fink advocated for Mercy Health in an ERISA dispute in the U.S. Court of Appeals for the Eighth Circuit. "The central issue in this case is whether a multibillion dollar, religiously affiliated hospital's plan falls within that exemption. Because we find that the plan at issue falls within the exemption, we affirm in part and reverse and remand in part," the panel said in its ruling. Karen Handorf of Cohen Milstein Sellers & Toll argued for the plaintiffs.

>> Ogletree, Deakins, Nash, Smoak & Stewart lawyers Christine Townsend and Patrick Martin recently entered their appearances for Wells Fargo in a pending lawsuit over alleged employment discrimination. The action was filed March 2 in Iowa Southern District of Iowa by Duncan Green PC. Read the complaint.

>> Heidi Burakiewicz of Kalijarvi, Chuzi, Newman & Fitch in Washington is representing federal employees in a new suit in the U.S. Court of Federal Claims that seeks hazardous pay amid the coronavirus crisis.

Around the Water Cooler: Covid-19 Edition

Companies Walk Fine Line on Employee Data Amid Coronavirus Outbreak. "As the coronavirus outbreak has turned into a pandemic, privacy lawyers say companies must be careful not to demand excessive personal information from workers, saying that could violate data-protection and employment laws in Europe and the U.S. Corporate executives are seeking to stop the spread of the coronavirus by implementing measures including travel bans, requirements to report international travel and, in some cases, health tests such as body temperature scans at office entrances. The situation becomes especially delicate for companies to navigate if employees are reluctant to share details about their personal travel or health." [WSJ]

COVID-19 will add to employers' already increasing health care costs. Employers' health care benefit costs could jump by as much as 7 percent this year due to the COVID-19 outbreak – on top of the 5 percent increase that employers had previously projected before the pandemic, according to an actuarial analysis of self-funded employers by Willis Towers Watson. [Benefits Pro]

New York Attorney General Looks Into Zoom's Privacy Practices. "As the videoconferencing platform's popularity has surged, Zoom has scrambled to address a series of data privacy and security problems." [NYT] The company got hit with a privacy class action earlier this week in S.F. federal court, as noted by Law.com's Legal Radar. Law.com has more here on Zoom litigation.

How Morgan Lewis' Pro Bono Counsel Quickly Jumped Into a Coronavirus Class Action. Morgan Lewis' senior pro bono counsel Susan Baker Manning, and another solo practitioner and immigration attorney on the case, Amy Maldonado, speak with The National Law Journal about what it's like to seek a TRO during a pandemic, and the importance of pro bono work during a health crisis. [NLJ]

Coronavirus Prompts Instacart and Amazon Strikes Over Health Concerns. "Instacart and Amazon are the latest targets of labor action by groups fearing coronavirus exposure on the job." [NYT]

Coronavirus Pandemic Compels Historic Labor Shift. "The coronavirus pandemic is forcing the fastest reallocation of labor since World War II, with companies and governments mobilizing an army of idled workers into new activities that are urgently needed. Around the world, former hotel, restaurant and airline staff are moving to grocers, online retailers and hospitals as parts of the economy are shuttered to prevent the spread of the disease—and essential goods and services are strained." [WSJ]

These 'mission critical' federal employees and contractors are still reporting to the office. They're terrified they'll get sick. "Thousands of federal employees and contractors are still badging in to offices they worry have turned into petri dishes—whether they're answering phones for the Internal Revenue Service in a cubicle farm in Covington, Ky., or reading intelligence streams in a special facility at the Pentagon where the government keeps classified information. This large swath of the workforce is keeping many operations afloat during the crisis." [The Washington Post]

And a notable move…

"Alexander Passantino, co-chair of the wage-and-hour litigation practice at Seyfarth Shaw in Washington, has joined Walmart Inc. as a senior director for U.S. labor and employment compliance," Bloomberg Law reports.