Welcome to Labor of Law, and we hope you, family, friends and colleagues are safe in the virus era. On tap this week: What employers should think about as states reopen | New legal landscape for automated, post-pandemic world | New EEOC settlements | Who Got the Work. 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 Employers Should Think About As States Reopen

Seyfarth Shaw partner Brett Bartlett spoke with my colleague Lisa Helem, editor-in- chief of The National Law Journal, about what he's hearing from clients as more cities and states weigh considerations to reopen amid the covid-19 pandemic. Bartlett addressed a range of issues, including how to keep up with the super-fast flow of developments, privacy considerations and more. You can read the full interview here at Law.com. A few highlights from Bartlett follow:

>> "Resoundingly, I'm hearing from employers across the country that they urgently want to open, but they are not prepared to rush to do so. Many with which I've spoken believe that Georgia's decision to reopen is premature. Even those that are not skeptical of the fast opening seem generally to feel that their customers believe it's too soon. All of them are planning carefully. None are rushing. And I think that's the right path forward."

>> "There is so much information available that it presents the "drinking-from-a-fire-hydrant" dilemma. My recommendation for staying abreast of what is relevant for a particular business, including the sundry and seemingly frequently changing leave laws, is for employers to find one or two trusted advisers and to work with them on more of a bespoke basis."

>> "Screening and testing programs intended to ascertain if employees have covid-19 present numerous concerns. I think they are important programs and that employers should be considering very seriously how to use them without stumbling inadvertently into risky space."

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New Legal Landscape for Automated, Post-Pandemic World

To comply with social distancing guidelines and to keep workers safe, some retailers are using robots to scrub floors, and recycling facilities are using robots to sort potentially contaminated items, my colleague Alaina Lancaster reports at Law.com. Some hospitals are disinfecting patient rooms with robots that zap the virus with ultraviolet light, and treating patients with remote-controlled telehealth robots.

Natalie Pierce (above), a Littler Mendelson shareholder in San Francisco and co-chairwoman of the firm's robotics, artificial intelligence and automation practice group, spoke with Alaina about the race to automate and associated legal considerations.

"Minimizing touches is going to become a very big deal, I think even post-pandemic, not just to increase safety levels for employees and customers, but I think the lesson learned will be that adoption is easy. The cost has really come down. These robots are able to work in tight spaces and around people," Pierce said.

Pierce also said she expects a greater movement for robotics standardization "now that we've gone through this, and see how difficult it is."

 

Who Got the Work

>> Lawyers from Hunton Andrews Kurth and Lathrop GPM LLP are representing Smithfield Foods Inc. in a covid-19 labor suit in the Western District of Missouri. The complaint was filed by lawyers at Heartland Center for Jobs and Freedom, Towards Justice, and Public Justice. Read more here at Law.com. The Wall Street Journal has a broad spotlight here: Food-Plant Workers Clash With Employers Over Coronavirus Safety. And over at the NYT, an op-ed from a worker at a meatpacking plant: Two of My Colleagues Died of Covid-19.

>> Nelson Mullins Riley & Scarborough partner Giles Schanen Jr. was counsel to the commercial and industrial janitorial services company HM Solutions in an EEOC settlement. The agency said HM Solutions would pay $315,000 to resolve a sexual harassment and retaliation lawsuit. EEOC senior trial attorney Rachael Steenbergh-Tideswell signed the settlement for the government. Read the consent order here.

>> The Tampa firm Hill Ward & Henderson represented fast food chain Whataburger Restaurants LLC in a $180,000 settlement with the EEOC resolving claims of retaliatory harassment and constructive discharge. "In this lawsuit, an employee risked her own livelihood to take a stand against race discrim­ination," Robert Weisberg, regional attorney for the EEOC's Miami District, said in a statement. Whataburger denied the allegations. Read the consent order here.

 

Around the Water Cooler

Covid-19

New York Attorney General Scrutinizes Amazon for Firing Warehouse Worker. "Amazon may have violated federal worker safety laws and New York State's whistle-blower protections when it fired an employee from its Staten Island warehouse who protested the company's response to the coronavirus outbreak, according to a letter the office of the New York attorney general, Letitia James (above), sent the company last week." [NYT] NPR, which first reported the news, has more here.

Tech Leaders Map Out Post-Pandemic Return to Workplace. "Businesses will be turning to enterprise technology to smooth out the process of getting employees back to the workplace in the wake of the coronavirus pandemic, according to a report by Forrester Research. Technology leaders say safety will be a top priority." [WSJ]

The Post-Pandemic Workplace Will Hardly Look Like the One We Left Behind. "Companies are actively starting to prepare for the eventual return of at least some office workers who have been working remotely — rethinking floor layouts, staggering work schedules and making changes that could fundamentally shift relationships with employers, such as scanning temperatures. Other firms have borrowed from their experiences in Asia or from managing essential workers during the shutdown, relying more on adapting social distancing to the workplace." [The Washington Post]

Workers Turn to Courts and States for Safety Protection as Trump Declines to Act. "President Donald Trump can force meatpacking plants to stay open during the pandemic, but his own administration hasn't required employers to provide safety equipment to prevent the virus' spread. Now, workers in a range of industries are looking to states, Congress and the courts to step in." [Politico]

'Risking My Life' to Truck In Milk, Wine and Hand Sanitizer. "Even as the coronavirus pandemic has shut down New York City, thousands of truck drivers like Mr. Morales are still rolling through its mostly deserted streets. They are doing what they always do—moving groceries, household staples, and supplies and equipment—but with new urgency as they keep New York running and help people cope with the worst health crisis in a century." [NYT] A CNN report on the food chain raises alarms from a major manufacturer.

States Aim to Expand Workers' Compensation for Covid-19. "More states are changing or reconsidering rules to ensure that nurses, paramedics, firefighters and others battling the novel coronavirus have unimpeded access to workers' compensation benefits if they are infected. Officials are trying to balance the needs of individuals and employers overwhelmed by the pandemic's economic fallout. Expanding such access could add tens of billions of dollars in added costs for insurers, which would seek to pass them on to employers." [WSJ]

Front-Line Workers in the Covid-19 Fight Need Unions. "Front-line workers deserve protection, and this demands listening to the specifics of their workplace grievances so they can perform their jobs and maintain their health and safety, and those of their co-workers and customers. As legislation stalls and workers face repercussions for voicing such concerns, it becomes clear what they need most: unions." [The Washington Post]

Fired in a Pandemic 'Because We Tried to Start a Union,' Workers Say. "As American companies lay off millions of workers, some appear to be taking advantage of the coronavirus crisis to target workers who are in or hope to join unions, according to interviews with more than two dozen workers, labor activists and employment lawyers." [NYT]

Courts and cases

Kirkland & Ellis Draws Judge's Ire for 'Audacious' Behavior. "Kirkland & Ellis LLP 'should be embarrassed' by the way it stonewalled information requests from a legal recruiting firm trying to enforce a noncompetition agreement against a former employee, a federal judge in Texas said Monday. The firm's 'petty, technical, overly-argumentative emails are a study in what is wrong with civil discovery in our court system today,' Judge Andrew W. Austin said for the U.S. District Court for the Western District of Texas. [Bloomberg Law]

Walmart Assistant Managers Denied Class Certification in Overtime Dispute. A federal judge in Newark has denied certification to a class of Walmart overnight assistant store managers in New York and New Jersey who claimed they were wrongly declared exempt from overtime pay, my colleague Charles Toutant reports. [NJ Law Journal] Greenberg Traurig represented Walmart. The New York firm Hepworth, Gershbaum & Roth represented the plaintiffs. Read the ruling here.

Federal Investigators Looking at GM as Part of UAW Probe. "Federal investigators probing corruption at the United Auto Workers union have also been looking at General Motors Co.'s dealings with UAW officials, reflecting a newer front in the yearslong criminal investigation. Agents have interviewed both current and former GM employees within the company's labor relations department and raised questions about interactions between GM's top bargainers and their counterparts at the UAW, say people with knowledge of the inquiry." [WSJ]

 

Notable Moves

>> Fox Rothschild LLP said it has hired Kelley Hodge in Philadelphia as a partner in the labor and employment practice. Hodge was the first African-American woman to lead the Philadelphia District Attorney's office. "Kelley is a trailblazer in the legal field and a steadfast advocate for women, children and underprivileged in the community," Stephanie Resnick, managing partner of Fox Rothschild in Philadelphia, said in a statement.

>> Blank Rome LLP has brought on Andrew Herman and Mariette Mooyman as associates in Philadelphia. Andrew arrives from Curley, Hurtgen & Johnsrud LLP. Mariette earlier was an in-house counsel at a speciality gas supplier.