Welcome to Labor of Law. On tap this week: At SCOTUS, Massachusetts defends power to regulate au pairs working via a federal program. Jones Day can't dodge claims in gender bias case. Who Got the Work: Williams & Connolly brings trade-theft claims against a former Mars Inc. executive. Scroll down for notable moves and our roundup of covid-19 headlines about the changing workplace.

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

 

At US Supreme Court, State Regulation of Federal Au Pair Program Faces Challenge

Lawyers for Massachusetts this week urged the U.S. Supreme Court to uphold a ruling that said the state can impose labor and employment regulations, including a minimum wage requirement, on au pairs who are working in the United States as part of a federal program run by the State Department.

A federal appeals court in December ruled for Massachusetts, and two host parents and a sponsoring agency turned to the Supreme Court to challenge the decision. Lawyers for the challengers, represented by Kirkland & Ellis partner Paul Clement (above), contend the U.S. Court of Appeals for the First Circuit decision unlawfully permitted Massachusetts to impose state regulations on a federal program.

Not so fast, the Massachusetts legal team said. "There is not the slightest evidence of congressional intent to preempt the application of state worker protection laws to au pairs. Congress did not delegate to the State Department or any other agency authority to preempt such laws," Robert Toone, an assistant attorney general for Massachusetts, told the justices. "There is no federal law or even regulation applicable to au pairs that mentions preemption or exclusive remedies."

Clement wrote in his petition: "The United States has already shared its definitive views that this distinctly federal and international cultural exchange program needs uniform federal regulations. Massachusetts sees an employment program, not an international cultural exchange program, and regulates it as such. The only way to restore the federal government's vision of the au pair program is for this court to grant review and reverse now."

Lawyers from Jones Day, including partner Shay Dvoretzky, are representing host families as friends of the court backing Clement's clients. "Laws like Massachusetts' undermine the Program's cultural exchange objective by transforming what is meant to be a familial relationship into an economic one," Dvoretzky told the justices.

Orrick, Herrington & Sutcliffe partner Mark Davies is counsel to former au pairs who are backing the challengers at the Supreme Court.

"If allowed to stand, Massachusetts' attempt to impose its own regulations on the au pair program would undermine—and potentially destroy—the program," Davies wrote. "State-by-state regulation of the au pair program threatens the deliberate balance struck by the federal government, emphasizing instead labor and compensation at the expense of the program's core educational and cultural components."

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Jones Day Must Face 'Black Box' Compensation and Gender Bias Claims

A federal judge in Washington this week dismissed some claims by former female associates at Jones Day over alleged discriminatory practices at the firm, but allowed others to stand, my colleague Jacqueline Thomsen reports.

U.S. District Judge Randolph Moss sided with Jones Day in dismissing some of the claims presented in amended complaints against the firm, finding there was insufficient evidence behind the claims, or that the plaintiffs' attorneys with Sanford Heisler Sharp did not reasonably show the alleged practices violated the law. However, he found, at this stage of the proceedings, the plaintiffs had provided enough information to the court to let other allegations stand.

Moss dismissed some claims alleging a hostile work environment at Jones Days, as well as some named plaintiffs' allegations of Equal Pay Act violations and discriminatory practices for pregnant women or mothers. But he let sex-based disparate impact claims move forward. He also allowed allegations surrounding Jones Day's "black box" compensation, as well its evaluation policies to survive.

"They have alleged that Jones Day employs a highly centralized, subjective evaluation process in which a consensus statement is prepared by 'cherry picking' feedback from some, but not all, evaluations, and in which complaints about compensation decisions are not tolerated," Moss wrote. "Drawing all reasonable inference in plaintiffs' favor at this stage of the proceeding, the court cannot accept Jones Day's conclusion that each of these elements is necessarily capable of separation for analysis."

 

Who Got the Work

>> A team from Williams & Connolly—including partners Dane Butswinkas and David Riskin—represent Mars Inc. in a suit filed Wednesday against a former executive who left the company last year. The complaint was filed in U.S. District Court for the District of Columbia. It seeks, among other things, an order barring the former executive "from possessing, using, or sharing with others any Mars confidential business information."

>> Venable partner Brian Clark in New York and associate Allison Gotfried have entered appearances for Bon Secours Charity Health System, Good Samaritan Hospital of Suffern NY and Westchester Medical Health Foundation in a suit from a nurse who alleged inadequate covid-19 protective equipment. The complaint, in the Southern District of New York, was filed by New York attorney Gregory Antollino. "The unprecedented pandemic is a reality, but it does not follow logically that a nurse must risk his or her life without accommodations in a pandemic," Antollino told the court. The Venable lawyers are challenging claims.

>> Wigdor LLC's Jeanne Christensen is counsel to a former junior investment associate at Advent Capital Management who is claiming sexual harassment and discrimination. Read the complaint here in U.S. District Court for the Southern District of New York. Advent Capital said "we believe that the complaint does not fairly or accurately recount the facts." My colleague Jason Grant has more here.

 

Around the Water Cooler

With Return to Offices Still Uncertain, Big Law Shifts From When to How. Across the board, Big Law is taking a cautious approach to repopulating their offices and keeping remote work—which has gone relatively smoothly for most—the status quo for now. At the same time, firms say they are shoring up the health and safety measures in their offices so that when people decide to come back, there will be as little health risk as possible. [Law.com]

Companies Fear Coronavirus Liability Lawsuits. So Far, Few Exist. "Businesses are urging U.S. lawmakers to shield companies from what they fear could be a flood of lawsuits by workers and consumers blaming employers for exposing them to the new coronavirus. But so far, court records show few such cases have been filed and some legal experts say the threat of liability is exaggerated because of the difficulty of proving where someone was infected." [Reuters]

A Majority of Americans Going to Work Fear Exposing Their Household to the Coronavirus. "A Washington Post-Ipsos poll of more than 8,000 adults in late April and early May found that nearly 6 in 10 Americans who are working outside their homes were concerned that they could be exposed to the virus at work and infect other members of their household. Those concerns were even higher for some: Roughly 7 in 10 black and Hispanic workers said they were worried about getting a household member sick if they are exposed at work." [The Washington Post]

The Future of Work, the Changing Shape of the Office, and the End of Business Travel. "Chief executives say the pandemic has pointed the way toward a near future of flexible work, a more relaxed work-life balance, and more inclusive cultures." [Business Insider]

Tech Could Be Used to Track Employees—in the Name of Health. "As businesses across the US scramble to restart operations and breathe life into a cratering economy, many are exploring both low- and high-tech solutions to keeping workers safe. Masks, sanitizer, and plexiglass sneeze barriers are increasingly common; some also are turning to technology such as temperature-sensing cameras and apps that require workers to report their symptoms and possible exposure." [Wired]

Summer Associate Programs and COVID-19: How Law Firms Are Responding. Big firms have been forced to shorten, cancel or otherwise shift their summer associate programs in light of closed offices across the country, remote working arrangements and the economic toll from the coronavirus pandemic. [Law.com]

McDonald's Workers Sue Claiming Virus Measures Falling Short. "McDonald's Corp. was sued by a handful of workers in Chicago who claim the restaurant chain has failed to keep them and others safe while they continue to serve food during the Covid-19 pandemic. Five employees sued in Illinois state court Tuesday claiming they are being forced to work 'in close proximity' to potentially infected co-workers and customers, and that McDonald's and its franchise restaurants "are failing to take important steps to contain the virus, such as providing adequate protective equipment, hand sanitizer, and safety training for employees, or enforcing safety protocols." [Bloomberg]

 

Notable Moves & New Hires

>> Recruiter Mlegal Group has formally announced the arrival of partner Lauren Drake (above), who left Major, Lindsey & Africa last September. Major Lindsey sued, accusing her of violating a noncompete agreement. In November, the parties settled. Drake will be working with prominent legal recruiter Jane Roberts, another Major Lindsey alum who launched Mlegal's D.C. office last year.

>> Fox Rothschild said it has brought on Jeffrey Thomas as a labor and employment partner in Los Angeles. He arrives from Akerman LLP.

>> Barnes & Thornburg has hired Sarah Hawk as a partner in the labor and employment practice in Atlanta. Hawk arrives from Polsinelli, where she was a shareholder.