Welcome to Labor of Law, our labor and employment dispatch on the big cases, issues and trends. On the clock: DC judge won't sanction the plaintiffs lawyers suing Jones Day | Docket watch: SCOTUS turns down new arbitration petition | Slight decrease in legal unemployment | Who Got the Work. And scroll down for headlines about the changing workplace in the virus era.

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Jones Day Loses Bid to Sanction Associates in Gender Bias Case

A federal judge in Washington this week denied Jones Day's request for sanctions against a group of ex-associates who brought a a $200 million proposed gender discrimination class action against the firm, my colleague David Thomas reports.

U.S. District Judge Randolph Moss said he wasn't persuaded by Jones Day's assertion that the evidence revealed so far undermined and contradicted the plaintiffs' claims that Jones Day paid men more than women.

"To the extent that Jones Day argues that plaintiffs failed adequately to investigate their claims before initiating this lawsuit, the court is unconvinced," Moss wrote in his order. He noted that the named plaintiffs—six female former associates—faced "two considerable challenges": the firm maintains a secretive "black box" compensation structure, and they lack access to the firm's organizational pay data.

The judge's ruling came three weeks after he refused to dismiss disparate-impact claims related to Jones Day's compensation model but trimmed others, including claims that the firm maintained a hostile work environment, violated the Equal Pay Act, and discriminated against pregnant women or mothers.

 

SCOTUS Won't Take Up California Court's Ruling Against Arbitration

The U.S. Supreme Court declined on Monday, without comment, to take up a petition that challenged a California Supreme Court ruling against arbitration. The challengers had argued "millions of arbitration agreements" would be jeopardized if the justices didn't take up the case.

Lawyers from Paul, Weiss, Rifkind, Wharton & Garrison were advocating for an Oakland-based Toyota dealership fighting a California Supreme Court decision that favored an employee. Paul Weiss partner Kannon Shanmugam, counsel of record, had argued "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."

David Rosenfeld of the California firm Weinberg, Roger & Rosenfeld represents Ken Kho, a former mechanic who said he has not been paid all wages due. Rosenfeld 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."

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."

>> Meanwhile, in other California news: A California regulatory agency says Uber and Lyft drivers are employees. NBC News has more here.

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Legal Industry Sees a Small Rebound After Bleeding Jobs in April

The employment situation report released last Friday by the Bureau of Labor Statistics showed a 1.4% decrease in overall unemployment in May as the economy added 2.5 million jobs, including 3,200 in the legal industry, which had shed over 60,000 jobs between April and May, my colleague Patrick Smith writes at Law.com.

The legal industry, consisting of attorneys, legal secretaries, paralegals and others who make their living in the law, has been battered by furloughs, layoffs and other austerity measures over the past two months.

The industry is starting to rebound, even as news of layoffs at firms continues to trickle out in June. The industry currently employs 1,097,500 people, down 50,000 from the same point last year, when there were 1,147,400 workers in the sector.

Even amid the news of modest improvement, some industry experts predict that legal industry layoffs will actually continue for the next several months. But that wasn't the case in May, and the broader economy showed signs of life as well, after the coronavirus contributed to more than 42 million people filing for unemployment since mid-March.

 

Who Got the Work

>> Lawyers from Davis Wright Tremaine—including Brad Fisher, Robert Maguire and Zana Bugaighis—represent Amazon Inc. in a noncompete suit in Washington state court against a former marketing leader who's joined Google Cloud, according to Geekwire report about the litigation. Tyler Francis and Edward Piper of the Angeli Law Group represent the former Amazon vice president.

>> Ogletree, Deakins, Nash, Smoak & Stewart shareholder Gavin Martinson argued for Dassault Falcon Jet Corp. in a Fair Labor Standards Act case in the U.S. Court of Appeals for the Eighth Circuit. The appeals court concluded "the district court erred in granting plaintiffs summary judgment on this limited record." Josh Sanford of the Sanford Law Firm argued for the employees.

>> Ogletree Deakins shareholder Rebecca Bennett and Monica Levine Lacks of McGlinchey Stafford have entered appearances for Gulfport Energy Corp. in a pending lawsuit over alleged wage and hour violations. The suit was filed April 8 in Ohio Southern District Court by Coffman Legal LLC.

>> Littler Mendelson's Paige Cantrell is on the team defending Chesapeake Energy, a natural gas producer headquartered in Oklahoma City, in a pending lawsuit over alleged wage-and-hour violations. The action in the U.S. District Court for the Western District of Texas was filed by Goldberg & Loren.

>> The Fifth Circuit this week ruled for Houston in a suit alleging discrimination and hostile work claims brought by an African American female firefighter. "In short, the most [plaintiff] has shown is that her colleagues were sometimes offensive and boorish. But Title VII does not impose a 'general civility code' on employers," Judges Jerry Smith, James Ho and Andrew Oldham wrote in the ruling. The law firm Cline | Ahmad argued for the employee. Houston relied on its in-house legal department.

 

Around the Water Cooler…

Covid-19

The Office Elevator In COVID Times: Experts Weigh In On Safer Ups And Downs. "If office tower workers want to stay safe, elevator experts think they have advice, some practical, some not: Stay in your corner, face the walls and carry toothpicks (for pushing the buttons). Not only have those experts gone back to studying mathematical models for moving people, but they are also creating technology like ultraviolet-light disinfection tools and voice-activated panels." [NPR]

The Office Is Far Away. Can Its Culture Survive? "Millions of workers have proved they can do their jobs at home for now—sometimes surpassing their productivity in the office. But as more managers come to accept the reality that employees may be apart for a while longer, they are fretting about how they can instill culture and encourage innovation when employees who once spent days together now rarely see each other in person." [WSJ]

When the Office Is Like a Biohazard Lab. "Now that the Centers for Disease Control and Prevention has recommended sweeping changes to American offices, companies around the country are preparing elaborate new routines intended to keep their employees healthy. In many cases, the changes will transform workaday offices into fortified sites resembling biohazard labs." [NYT]

Hospitals Got Bailouts and Furloughed Thousands While Paying C.E.O.s Millions. "HCA is among a long list of deep-pocketed health care companies that have received billions of dollars in taxpayer funds but are laying off or cutting the pay of tens of thousands of doctors, nurses and lower-paid workers. Many have continued to pay their top executives millions, although some executives have taken modest pay cuts." [NYT]

Older Workers Grapple With Risk of Getting Covid-19 on the Job. "In meat plants, transit terminals, post offices and other workplaces, many older workers have continued clocking in despite the heightened risk they face. In some cases, the strong work ethic of an older generation of workers kept them in harm's way, family members said, while others kept working to pay bills even after federal health authorities warned in early March that older people faced greater risk." [WSJ]

Labor Secretary Eugene Scalia Opposes Extension of Extra $600 in Unemployment Benefits. "U.S. Labor Secretary Eugene Scalia (at left) said he opposed the extension of $600 a week in unemployment benefits that workers are receiving as a result of the coronavirus pandemic, an option lawmakers are debating as they negotiate the next stimulus bill. Mr. Scalia said the enhanced payments, included in a federal stimulus package signed into law at the end of March, will have served their usefulness by the time the current program expires at the end of July." [WSJ]

Courts and cases

DLA Piper Team Withdraws in Texas Recruiter's Trade Secrets Suit. "Three DLA Piper litigators in Dallas have withdrawn from defending recruiter Evan Jowers in a trade secrets suit filed by Austin's MWK Recruiting. Last month, a magistrate judge in Austin had criticized the DLA Piper team for how it handled a discovery dispute." [Texas Lawyer]

Judge Questions Intent of Labor Board's Union Election Rule. "The National Labor Relations Board's explanation for a recent set of regulations that would have delayed the process of unionization in the private sector were called into question by a federal judge in an opinion issued Sunday. U.S. District Court for the District of Columbia Judge Kentanji Brown Jackson struck down major portions of the rulemaking in a short order May 30, a day before the new policies were to take effect." [Bloomberg Law] Read the ruling from Jackson (at left) here.

Minnesota Supreme Court Backs Paid Sick Time Requirement. Advocates for workers' rights welcomed a ruling from the Minnesota Supreme Court on Wednesday upholding a Minneapolis ordinance requiring sick pay. The state's high court ruled 5-2 that a city of Minneapolis ordinance governing employee sick and safe time does not pose an irreconcilable conflict with state law, and state law therefore does not preempt the local rule. [Law.com]

Black Davis Polk Lawyer Says 'Institutional' Bias Spurred Firing. "A black former associate accusing Davis Polk & Wardwell LLP of bias and retaliation because of his race says the firm never had a problem with his job performance until he started complaining about its already acknowledged 'institutional' discrimination, according to a new filing in New York federal court." [Bloomberg Law]

Law firm practices

Obama Civil Rights Lawyers' Second Act Means 'Switching Sides'. "When two lawyers known for policing workplace discrimination during the Obama administration went looking for new gigs, Morgan Lewis, a Big Law firm that often defends companies accused of violating workers' rights wasn't exactly a natural landing spot." [Bloomberg Law]

 

Notable Moves

>> Two partners from Reed Smith, including the head of the firm's global labor and employment practice, moved to Baker & Hostetler's Houston office, boosting their new firm's standing in a practice area that has become especially valuable during the coronavirus pandemic. Mark Temple, the former Reed Smith practice head, and Peter Stuhldreher joined Baker & Hostetler's national labor and employment practice group as partners.

>> Barnes & Thornburg said it has brought on Grant Pecor as a partner in the labor and employment practice in Grand Rapids and Chicago. Pecor formerly worked at Clark Hill.