Welcome to Labor of Law. On tap this week: Up to 43 million could lose employer-sponsored health insurance | Amicus briefing in major pay equity case at the U.S. Supreme Court | 'Curve has flattened' for ADA website lawsuit filings. Scroll down for Who Got the Work, and our roundup of covid-19 headlines about the changing workplace. Two new L&E federal appellate rulings are out today–links below.

I'm Mike Scarcella in Washington, and you can reach me at [email protected] and on Twitter @MikeScarcella. Thanks for reading!

Up to 43 Million Could Lose Employer-Sponsored Health Insurance

As unemployment soars, an estimated 25 million to 43 million people will lose their employer-sponsored health insurance coverage in the coming months, according to a new study. Before the COVID-19 pandemic, about 160 million people nationwide under the age of 65 got their health insurance through their jobs, according to a new report at ALM affiliate Benefits Pro.

Between March 15 and April 25, 30 million people filed for unemployment, and researchers from the nonprofit Urban Institute's Health Policy Center anticipate that number will only climb, my colleague Jenna Greene writes.

The result? The newly unemployed are being left to scramble for health insurance coverage. The researchers estimate that 21 million now-jobless people will get health insurance coverage via Medicaid, 10 million will gain coverage through the marketplace or other private plan, and 12 million will become uninsured.

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Time Management: Vital Principles to Help you Stay on Track Whilst Working from Home

Most people imagine that working from home is a casual affair that should not be treated with seriousness. However, if you are thinking about venturing into any form of home business, you have to acknowledge the fact that it requires as much seriousness as any other business. READ MORE

Amicus Briefing in Pay Equity Case at SCOTUS

The Fresno County schools superintendent who's challenging a Ninth Circuit pay-equity ruling has got some friends at the U.S. Supreme Court. The petition from lawyers at Jones Day, led by partner Shay Dvoretzy, has amicus backing from several business and management-side advocates.

The case tests the contours of the Equal Pay Act—whether and when employers can consider prior salary history in justifying differences in compensation for male and female employees performing similar roles. The brief in opposition from Daniel Siegel of Oakland's Siegel, Yee, Brunner & Mehta is due later this month.

Here's a snapshot of briefs supporting Fresno County:

>> Society for Human Resource Management, represented by Seyfarth Shaw partner Camille Olson: "SHRM, in opposing this new rule, supports a rule that would permit employers to consider prior salary when the surrounding circumstances make it reasonable to do so, and where the employer is not simply relying on market forces that have permitted employers to pay women less because they are women."

>> U.S. Chamber of Commerce, represented by Norton Rose Fulbright partner Jonathan Franklin: "This sex-neutral practice can benefit female and male applicants alike—particularly those who were highly valued by their prior employers—by increasing the pay that they might otherwise receive. By placing wage-history data off limits for employers within the nation's largest circuit, the court of appeals' rule exacerbates a clear, acknowledged split regarding the legal viability of that important practice."

>> Center for Workplace Compliance, represented by NT Lakis LLP partner Danny Petrella: "Employers compensate their employees based upon numerous, legitimate nondiscriminatory business factors, and it is critical that they can do so in good faith and under a consistent framework established by the EPA. The decision below creates uncertainty for employers nationwide as to the validity of their compensation policies and systems, and exposes a number of facially nondiscriminatory wage systems to future challenge under the EPA, including those that compensate employees based on specific skills, certifications, or degrees, simply because they on rely on factors that may have a correlation with the gender wage gap."

'Curve Has Flattened' for ADA Website Lawsuit Filings: Seyfarth

After explosive growth in the number of Americans with Disabilities Act website-accessibility lawsuits filed in 2018, it appears the litigation has leveled off, according to Seyfarth Shaw, my colleague Jason Grant reports.

In 2019, there were 2,256 ADA website-accessibility lawsuits filed in federal courts, as compared with just two more (2,258) in 2018, according to Seyfarth labor and employment partners Minh Vu and Kristina Launey, who keep a tally of various ADA suits lodged by the federal courts and who blog about their findings.

The title of their recent blog post on the latest year-over-year data: "The Curve Has Flattened for Federal Website Accessibility Lawsuits." By contrast, from 2017 to 2018 there was "an explosive 177% increase" in the number of suits, from 814 to 2,258.

Who Got the Work

>> Tesla Inc. is leaning on a Quinn Emanuel Urquhart & Sullivan team in the company's bid to seek a court order allowing it to reopen its Fremont, California, production plant. The Quinn Emanuel team includes New York partner Alex Spiro, Derek Shaffer in Washington, D.C., and Kyle Batter in Redwood Shores, California, my colleague Ross Todd reports at Law.com.

>> The U.S. Court of Appeals for the Fourth Circuit on Thursday revived a suit against IBM alleging unpaid commissions. Mark Sigmon of Sigmon Law in North Carolina advocated for the employee. Justin Barnes of the Atlanta office of Jackson Lewis argued for IBM.

>> A divided Eleventh Circuit panel on Thursday upheld the dismissal of Title VII retaliation and FMLA claims against Financial Asset Management Systems Inc. Former Littler Mendelson associate Aaron Saltzman, now at Herzog, Fox & Neeman, argued for the company. Brandon Hornsby of Atlanta's The Hornsby Law Group argued for the former employee.

>> A panel of the U.S. Court of Appeals for the Fifth Circuit declined to sanction Sun Coast Resources Inc. over an allegedly frivolous appeal. The law firm Wright Close & Barger advocated for Sun Coast. The firm Shellist | Lazarz | Slobin was counsel to appelle Roy Conrad "We sympathize with Conrad, for he has endured unfortunate delay and expense in the enforcement of his rights, and those of his class members, under the Fair Labor Standards Act. But we conclude that this is a time for grace, not punishment," Judge James Ho wrote for the Fifth Circuit panel.

>> The U.S. Court of Appeals for the Eighth Circuit has upheld summary judgment of Ozark Health Inc. in a sexual discrimination suit. The Little Rock, Arkansas, firm Wright & Lindsey represented the health company. The firms Baxter, Jewell & Dobson and McMath Woods represented the appellant.

>> The Chicago firm Werman Salas PC on Wednesday sued United Airlines in the Northern District of Illinois for alleged breach of contract that challenges the company's unpaid time off program. The complaint alleges the program violates agreements the defendant has made with the federal government in exchange for the airline receiving support under the CARES Act. My colleague Amanda Bronstad has more here at Law.com.

Around the Water Cooler

Covid-19

Senators Want to Know if Amazon Retaliated Against Whistle-Blowers. "In order to understand how the termination of employees that raised concerns about health and safety conditions did not constitute retaliation for whistle-blowing, we are requesting information about Amazon's policies regarding grounds for employee discipline and termination," the letter from Sen. Elizabeth Warren and eight other senators said. [NYT]

Companies Wrestle With New Cyber Security Threat: Their Own Employees. "As cyber criminals and hackers ramp up their attacks on businesses amid coronavirus-related disruption, companies are also facing another equally grave security threat: their own employees. Firms are increasingly turning to Big Brother-style surveillance tools to stop staff from leaking or stealing sensitive data, as millions work away from the watchful eyes of their bosses and waves of job cuts leave some workers disgruntled." [Financial Times]

Your Boss Is Watching You: Work-From-Home Boom Leads To More Surveillance. "Company emails that she provided to NPR show her employer believed the tracking software would improve the team's productivity and efficiency while everyone was working from home. Such rationales are increasingly ringing throughout workplaces nationwide." [NPR]

Employers Rush to Adopt Virus Screening. The Tools May Not Help Much. "But as intensified workplace surveillance becomes the new normal, it comes with a hitch: The technology may not do much to keep people safer. Public health experts and bioethicists said it was important for employers to find ways to protect their workers during the pandemic. But they cautioned there was little evidence to suggest that the new tools could accurately determine employees' health status or contain virus outbreaks, even as they enabled companies to amass private health details on their workers." [NYT]

Antibody Tests Could Lead to Job Discrimination and Encourage Workers to Play 'Russian Roulette'. "Rachel Horton, a lecturer in law at the University of Reading, told CNN that UK employees who felt they had faced discrimination due to their antibody status would have limited legal protections, as antibody status is not currently considered a protected characteristic under anti-discrimination law." [CNN]

Reopening the Coronavirus-Era Office: One-Person Elevators, No Cafeterias. "Every part of office life is being re-examined in the era of Covid-19. When employees file back into American workplaces—some wearing masks—many will find the office transformed, human-resources and real-estate executives say. Elevators may only take one person at a time. Desks, once tightly packed in open floor plans, will be spread apart, with some covered by plastic shields and chairs atop disposable pads to catch germs." [WSJ]

IRS Reverses Itself, Allows Tax Credit for Benefits Paid to Furloughed Workers. "The Internal Revenue Service, bowing to pressure from lawmakers and business groups, will let companies with furloughed, unpaid employees get a tax credit for paying their health benefits. Companies can now claim a tax credit worth up to $5,000 for each employee who isn't being paid and isn't working but is still receiving employer-provided health benefits." [WSJ]

Courts and cases

Supreme Court Takes On Employment Bias at Religious Schools. "The Supreme Court heard arguments on Monday on how broadly federal employment discrimination laws apply to schools run by churches in two cases that will give the court another opportunity to rule on the proper relationship between church and state, a topic that has deeply engaged the justices." [NYT] More here at WSJ.

Ex-Google Engineer Who Became Right-Wing Hero Quietly Ends Suit. "A lawsuit that made a big bang in Silicon Valley two years ago with allegations of mistreatment of politically conservative tech workers came to a quiet end this week. Former Google engineer James Damore and three other men who worked for or applied for jobs at the Alphabet Inc. unit asked a court to dismiss their lawsuit. Their written request was joined by Google. A lawyer for the men, Harmeet Dhillon, said they're prohibited as part of their agreement with Google from saying anything beyond what's in Thursday's court filing. Google declined to comment." [Bloomberg]

US Women's National Soccer Team Appeals Equal Pay Dismissal. "One week after a federal judge dismissed the equal pay claims in the US Women's National Team players' lawsuit against the US Soccer Federation, the USWNT players are continuing their fight." [CNN]

Former Morehouse Professor Files gender Discrimination Lawsuit. "A former Morehouse College professor has filed a gender discrimination lawsuit against the all-male Atlanta school, accusing officials of terminating her employment without just cause and bowing to pressure from students and administrators in the same fraternity who disagreed with how she graded students." [Atlanta Journal-Constitution]

Reluctant to Push June Trial Date, Judge in Tesla Worker Discrimination Case Faces Reality of Potential COVID-19 Delay. The San Francisco federal judge overseeing a case brought on behalf of Tesla Inc. factory workers who accuse the company of harboring a "Jim Crow era" work environment on the floor of its Fremont production plant all but conceded that there was no possibility of the case going to trial as scheduled in June, my colleague Ross Todd reports. [The Recorder]