Welcome to Labor of Law, our labor and employment dispatch on the big cases, issues and trends. On the clock this week: the questions lawyers are hearing a lot right now. At SCOTUS: New filings in a California arbitration case we're watching. Plus: Morgan Lewis chair Jami McKeon speaks about life at the firm in the virus era. Scroll down for our roundup of covid-19 headlines about the changing workplace.

I'm Mike Scarcella in Washington. Your feedback and sourdough tips are appreciated. Reach me at [email protected] and on Twitter @MikeScarcella. Thanks for reading!

 

Questions Employers Are Asking Lawyers About Reopening in the Virus Era

Being an employment lawyer during the COVID-19 pandemic has been a 24/7 job filled with emails, calls, client alerts, guidance and policy drafts, webinars, blog updates, podcasts and almost constant refreshing of government regulators' web pages, my colleague Cheryl Miller reports at Law.com.

"Sometimes we're literally reading the new regs as they're coming out," said Sue Stott, a partner in Perkins Coie's labor and employment law practice in San Francisco.

Company leaders have a lot of questions about when—or whether—competitors or others in the industry are reopening. The answer, lawyers say, often depends on where that company is located, whether they've been deemed "essential" and whether employees are getting the work done at home.

"In Texas, for example, we've already helped some clients return to the workplace this week," said Julie Totten, leader of Orrick Herrington & Sutcliffe's employment law and litigation practice group. "In California, offices in different cities are each handling that differently."

 

SCOTUS Docket Watch: 'No Longer Open to Reasonable Debate'

We're now fully briefed in a new arbitration dispute from California, where a team from Paul, Weiss, Rifkind, Wharton & Garrison is advocating for an Oakland-based Toyota dealership that is fighting a California Supreme Court decision.

"Not for the first time, the California Supreme Court has defied this court's mandate that arbitration agreements cannot be invalidated based on legal rules that overtly or covertly discriminate against arbitration," Paul Weiss partner Kannon Shanmugam (above), who leads the firm's Supreme Court practice, said in OTO LLC's new reply brief.

Shanmugam, working with the California firm Fine, Boggs & Perkins, asked the justices to grant the petition "to enforce its clear precedents and again invalidate an anti-arbitration rule devised by a state court whose hostility to arbitration is no longer open to reasonable debate."

The petition called the California Supreme Court a "serial offender" U.S. Supreme Court decisions upholding mandates of the Federal Arbitration Act.

David Rosenfeld of the California firm Weinberg, Roger & Rosenfeld represents Ken Kho, a former mechanic who contends he has not been paid all wages due. Rosenfeld has urged the justices to uphold the California Supreme Court decision, which called the dealer's arbitration agreement "substantively unconscionable." Arbitration, the divided court said, "is premised on the parties' mutual consent, not coercion."

Representing the California Labor Commission, Janill Richards, principal deputy solicitor general at the California attorney general's office, told the justices: "In this case, the California Supreme Court examined the particular circumstances surrounding the arbitration agreement's execution and concluded that they exhibited an unusual degree of oppression and surprise."

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Who Got the Work

>> A Fifth Circuit panel has upheld the dismissal of ERISA claims brought by four participants in Phillips 66's retirement plan. Mark Kindall of Izard, Kindall & Raabe argued for the plan participants. Travis Sales of Baker Botts argued for Phillips 66.

>> Brian Ortelere, co-chair of the ERISA litigation practice at Morgan, Lewis & Bockius, argued for Washington University in St. Louis in the U.S. Court of Appeals for the Eighth Circuit. A panel recently revived in part ERISA claims against the university. Todd Collins of Berger & Montague argued for the challengers.

>> Cozen O'Connor member Jeffrey Pasek, a past chair of the firm's labor and employment practice, is defending Dee Packaging Solutions Inc. in a coronavirus-related suit in the U.S. District Court for the Eastern District of Pennsylvania. Justin Robinette of the Law Offices of Eric A. Shore filed the complaint. The plaintiff, who is HIV-positive, claimed he was terminated in violation of the FMLA after staying home in late March due to his increased risk from COVID-19.

>> A Littler Mendelson team, including Amber Spataro and Scott Silverman, are defending Wayfair Inc. in an employment discrimination suit in U.S. District Court for the District of New Jersey. The complaint was filed by Savo Schalk Gillespie O'Grodnick & Fisher PA.

>> Lawyers from Stoel Rives, including Reilley Keating and Stephen Galloway advocated for Agate Resources LLC in a dispute at the administrative review board at the U.S. Labor Department. An appeal panel affirmed the dismissal of whistleblower claims.

 

Around the Water Cooler: Covid-19

For Many, Remote Work Is Becoming Permanent in Wake of Coronavirus. "Companies across the economy are considering a permanent shift to remote work in the aftermath of the coronavirus outbreak, following the lead of tech-sector giants. 'This will be an electric shock to the system,' said Paul Daugherty, chief technology officer for consulting firm Accenture PLC. 'Companies are on the hook to rethink the work experience, and the work tools, for their cocooning employees.'" [WSJ]

Employers Grapple With Question as They Reopen: To Test or Not to Test? "As the country reopens, employers are looking into how to safely bring back their workers. One recurring question: Should they be tested for the new coronavirus?" [NYT]

Pay Cuts Become a Tool for Some Companies to Avoid Layoffs. "Even as American employers let tens of millions of workers go, some companies are choosing a different path. By instituting across-the-board salary reductions, especially at senior levels, they have avoided layoffs." The report said "the trend is a reversal of traditional management theory, which held that salaries were sacred and it was better to cut positions and dismiss a limited number of workers than to lower pay for everyone during downturns." [NYT]

Preparing Workplaces for the 'New Normal' Amidst COVID-19 Concerns. "With COVID-19 still out there and a proven vaccine not yet in sight, the priority must be to create safe workplaces so employees can return confidently and risk-free." [Benefits Pro]

 

Courts and cases: Pay Equity at SCOTUS

In Equal Pay Fight, Justices Are Urged to Back Ruling That Bolstered Employees. Employers should not have authority under federal workplace laws to use prior salary history to justify paying male and female workers differently for the same roles, a California lawyer told the U.S. Supreme Court on Wednesday in a closely watched case confronting a common employment practice. [Law.com] Read the filing here from Daniel Siegel of Siegel, Yee, Brunner & Mehta.

Deloitte Sued Over Pandemic Unemployment Website Data Breaches. "Deloitte Consulting LLP was hit with two suits by people who claim their personal information was exposed on state websites the firm built to administer supplemental coronavirus unemployment benefits. A group of Ohio residents sued Deloitte late Thursday in Manhattan federal court, after officials in that state, Illinois and Colorado disclosed that personal information from benefit applicants, including home addresses and social security numbers, was exposed to other users of the system. Another group of Ohioans sued Deloitte in state court in Cleveland. Both suits are proposed class actions." [Bloomberg]

Uber and Lyft Drivers Sue for New York Unemployment Benefits. "The lawsuit says drivers must wait months to receive unemployment benefits, if they receive them at all, compared with the two to three weeks that the state has said is typical for other workers. The plaintiffs are seeking an injunction requiring the state to immediately pay their benefits and the benefits of other drivers to whom they are owed." [NYT] CNN has more here, and my colleague Jane Wester has more here.

FedEx Loses Bid to Bounce Lichten & Liss-Riordan From Wage Case. "FedEx Ground Package System Inc. can't disqualify Lichten & Liss-Riordan PC from a nationwide driver-misclassification collective action, a Pennsylvania federal court ruled. LLR's representation of the plaintiffs in this case doesn't conflict with its duty to clients in another action against FedEx in New Jersey, Judge Robert J. Colville of the U.S. District Court for the Western District of Pennsylvania said Thursday." [Bloomberg Law]

Former Indeed Employee Alleges Assault, 'Frat Culture' in Sex Discrimination Suit. "A former account executive at Indeed alleged in a lawsuit filed May 18 that the company engaged in gender discrimination by failing to address a sexual assault allegation and allegedly refusing to promote her based on her complaint." [HR Dive] Read the complaint here in SDNY. Young & Ma LLP and Golenbock Eiseman Assor Bell & Peskoe represent the plaintiff.

 

ICYMI: Morgan Lewis Chair Credits Diversified Practice, Good Fortune for Forestalling Cuts

Morgan Lewis chair Jami Wintz McKeon (above) spoke with my colleague Dan Packel about life at the firm in the virus era. The interview touched on remote work, collaboration, business development and more.

"I think people would have said that business development would be harder in this time, when you're not seeing clients face to face and you're not attending events. But I think the reverse has really proved true for us," McKeon said. "We very quickly and very early on developed teams of people who were focused on providing help and resources to our clients."

McKeon on the new reality of communication: "People are craving seeing each other; I think people will be excited to do that again. But they're also realizing you don't need to wait six months to have a face-to-face conversation, and you don't have to fly across the country to get somebody's attention."