Welcome to Labor of Law, our labor and employment dispatch on the big cases, issues and trends. On the clock this week: Fisher Phillips chairman Roger Quillen chats with ALM about the virus era | Snapshot from Littler's return-to-work survey | Who Got the Work: New covid-19 suits, and other cases | DLA Piper boosts L&E teams

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!

 

Roger Quillen of Fisher Phillips Sees Wave of Employment Work on Horizon

Roger Quillen, the head of labor and employment firm Fisher Phillips for more than 20 years, spoke with my colleague Ben Seal about responding to coronavirus demands, firm growth and what's keeping him up. Here's a snippet of the interview below, and read the full conservation at Law.com:

>> On demand: "Here's what I anticipate happening: As businesses begin to come back online, we are going to see a wave of employment work the likes of which has never been seen in our firm's history. Employers who were scrambling to make business-saving decisions on an emergency basis, while they were seeking a lot of advice, when you're moving that fast and making that many decisions, you're going to do things that will generate claims in the future. Plaintiffs lawyers will be very active and very creative in coming up with causes of action to challenge the steps that employers took."

>> Future of remote work: "Remote access to technology has always been seen as the outlier experience that we were accommodating. That has changed forever. We now see remote work and remote data access as the most natural thing in the world. I think this will have profound implications for the future for all law firms and probably all industries. From now on we will consider this to be a daily plausible alternative."

>> What keeps Quillen up: "In this era, what keeps me up at night is worrying about the great unknown of this pandemic. Is it going to have a second wave? Are our clients going to be able to get back to business? If they can, 2020 could turn out very well, and if not it's going to be a hard year. I worry about our people. Every day I try to check in to say, "Is everybody OK?" I hear reports about family members that are ill. I've heard reports about family members that have passed away. It's very scary. What keeps you up at night has definitely changed.

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In-House Counsel Concerned Over Liabilities Associated With Covid-19

Seventy-one percent of in-house counsel indicated they are concerned about the liabilities their companies face when bringing employees back to work during the new coronavirus pandemic, according to the COVID-19 Return to Work Survey published by Littler Mendelson on Tuesday, my colleague Dan Clark reports at Law.com.

"The wave of COVID-19 litigation has begun in haste and poses a real threat to employers, most of whom are already grappling with the economic fallout from this pandemic," Michael Lotito, shareholder and co-chairman of Littler's workplace policy institute in San Francisco, said in the report.

Alka Ramchandani-Raj, of counsel at Littler in Walnut Creek, California, said she was not surprised that in-house counsel believe litigation and complaints against employers will arise once the pandemic is over.

"We don't really know what is going to come out from a liability standpoint from COVID-19," Ramchandani-Raj said. "Some cases may be brought with regards to safety violations. There have also been inquiries from plaintiffs attorneys on WARN Act requirements."

 

Who Got the Work

>> Faegre Drinker Biddle & Reath is representing international food processor JBS in a covid-19 wrongful death suit in U.S. District Court for the Eastern District of Pennsylvania. The complaint, removed this week from state court, alleged wrongful death caused by exposure to the novel coronavirus in the workplace. The case was filed by Saltz Mongeluzzi & Bendesky. My colleague Max Mitchell has more here on the suit.

>> Ballard Spahr LLP, Protect Democracy and Bowles & Johnson PLLC are representing a former Donald Trump campaign staffer in an action in New York seeking to void a nondisclosure agreement, The Wall Street Journal reports. My colleague Jane Wester at New York Law Journal has more here.

>> K&L Gates partner Todd Nunn argued for AutoZone Stores Inc. in a labor dispute at the U.S. Court of Appeals for the Ninth Circuit. The appeals court said in its summary of a new ruling in favor of AutoZone: "The panel held that when a class representative voluntarily settles only his individual claims without indicating any financial stake in the unresolved class claims, the class claims are rendered moot." Michael Subit, a partner Frank Freed Subit & Thomas in Seattle, argued for the plaintiff, who sought damages for alleged violations of Washington's meal break laws.

>> A Chicago judge refused on Wednesday to dismiss a class action alleging McDonald's was creating a public nuisance by failing to protect its workers from COVID-19, my colleague Amanda Bronstad reports at Law.com. McDonald's is represented by Daniel Lombard and Jonathan Bunge of Quinn Emanuel Urquhart & Sullivan. The plaintiffs are represented by David Rosenthal of James & Hoffman in Washington, D.C.

>> Michael Morrison of the Los Angeles firm Alexander Krakow + Glick is counsel of record to an FBI investigative specialist who has alleged "the U.S. government has failed to provide required hazard pay or an environmental pay differential to FBI Investigative Specialists and Supervisory Investigative Specialists who, because of their jobs, work with or near people, surfaces, or objects infected with the coronavirus." The complaint is under seal in the U.S. Court of Federal Claims. Morrison has urged the court to allow the plaintiff to sue anonymously given an asserted sensitivity of their government position. Morrison is working with the California form Parker Cole P.C.

>> Lawyers from Outten & Golden, including Sally Abrahamson, have filed suit in Washington's federal trial court against Lyft. The complaint alleged a failure to comply with the Accrued Safe and Sick Leave Act on behalf of drivers amid the ongoing COVID-19 pandemic.

>> Kator, Parks, Weiser & Harris lawyers Michael Kator and Daniel Clark are counsel to the plaintiff in the new case Jane Doe v. Barr in Washington's federal trial court. The complaint alleged sex and age claims against the FBI, where the plaintiff had been a sepcial agent and a lawyer.

 

Around the Water Cooler

Covid-19

The Boss Wants to Know What You're Up To This Weekend. "Companies have a new question for employees: Any plans this weekend? As U.S. states reopen, sending residents back to work as well as social life, employers are urging workers to be cautious when they are off duty, and at least one local official has begun advising employers to ask staffers about activities in their off hours. Some companies are concerned that the many safeguards put in place at work to limit the spread of the coronavirus—from policies requiring masks on the job to separated desks—could be undone if workers are taking risks off the job." [WSJ]

Temperature Checks and Desk Shields: C.D.C. Suggests Big Changes to Offices. "If followed, the guidelines would lead to a far-reaching remaking of the corporate work experience. They even upend years of advice on commuting, urging people to drive to work by themselves, instead of taking mass transportation or car-pooling, to avoid potential exposure to the virus. The recommendations run from technical advice on ventilation systems (more open windows are most desirable) to suggested abolition of communal perks like latte makers and snack bins." [NYT] Read the guidelines here.

Will the Pandemic Push Knowledge Work into the Gig Economy? "The organizational factors that act as barriers for knowledge-based gig work are the same ones that in the past have inhibited remote work by full-time employees. If these issues can be resolved, whether a remote worker is full-time or gig-based is simply a matter of contractual documentation. Clearly, the experience of working during the pandemic provides useful insights on how to successfully contract knowledge work to external contractors." [Harvard Business Review]

Federal agencies

EEOC Chair Janet Dhillon Alters Pre-Lawsuit Process for Resolving Bias Claims. "Equal Employment Opportunity Commission Chair Janet Dhillon (at left) notified agency officials of the pilot program on May 29, Democratic Commissioner Charlotte Burrows said. The six-month pilot will change how the agency conciliates discrimination and harassment allegations in an effort to 'provide greater structure and transparency,' an agency spokesman told Bloomberg Law." [Bloomberg Law]

Labor Department Inspector General Retires After Warning of Fraud. "Labor Department Inspector General Scott Dahl announced Tuesday he was retiring from his post just a day after warning lawmakers of massive fraud in the unemployment insurance system, becoming the latest watchdog to exit the Trump administration." [Politico]

Courts and cases

Justice Department Blocks 'Essential' Marijuana Workers From Bankruptcy Protection. "The Justice Department is preventing struggling cannabis businesses and their workers from accessing bankruptcy to weather the coronavirus-related downturn, even in states that determine medical marijuana is an essential industry during the pandemic." [WSJ]

MIT Workers' Lawyers Reach Fee Compromise After ERISA Settlement. "The attorneys who negotiated an $18.1 million ERISA class settlement with Massachusetts Institute of Technology will end up with about $5.2 million in attorneys' fees after they reached a compromise with a federal judge in the District of Massachusetts. Judge Nathaniel M. Gorton told attorneys with Schlichter, Bogard & Denton LLP that he would either award them fees representing 29% of the settlement, or, if they didn't agree to that amount, appoint a special master to determine the appropriate fee award." [Bloomberg Law]

Amazon Workers Sue Over Virus Brought Home from Warehouse. "A group of Amazon.com Inc. warehouse employees sued the online retail giant, claiming its working conditions put not only them at risk of contracting the coronavirus but also their family members, including one who died." [Bloomberg] Reuters has more here.

UAW Staffer Sues Union Alleging Sexual Harassment, Retaliation. "A woman on staff at the United Auto Workers has filed a lawsuit claiming she was sexually harassed by higher-ranking UAW officials and that the union failed to take corrective action when she complained of the alleged incidents." [WSJ] Read the complaint, filed by Avery Williams of Williams Acosta PLLC and attorney Gerald Evelyn.

Wynn Resorts Fights Off Investor Suit on Harassment Allegations. "Wynn Resorts Ltd. beat a would-be securities class suit accusing it of misleading investors about sexual misconduct allegations against founder Steve Wynn, after a Nevada federal district judge dismissed the case." [Bloomberg Law] Read the order granting the motion to dismiss.

 

DLA Piper Boosts L&E Teams

DLA Piper said Julie Dunne has joined the firm's employment practice as a partner in San Diego. Dunne arrived from Littler Mendelson, where she was co-chair of the retail industry group.

"Julie is a well-respected and accomplished leader with extensive experience and a proven track record leading wage-and-hour litigation and employment-related class actions," Brian Kaplan, global co-chair of DLA Piper's employment practice, said. "Her understanding of the needs of clients in the retail industry also fits well with our firm's depth of experience across the sector, and we are extremely pleased to welcome her to our team."

The firm also said Erin Sweeney has joined the firm in Washington as a counsel in the employment practice. Sweeney arrives from Miller & Chevalier. Kaplan said Sweeney "brings valuable experience from her time working at the Department of Labor that will enhance our already stellar Employee Benefits and Executive Compensation team."