Welcome to Labor of Law, our labor and employment dispatch on the big cases, issues and trends. On the clock: How Trump's latest suspension of foreign worker visas could affect the tech industry. Covid-19 contact tracing versus protecting personal privacy. Who Got the Work: in-house lawyer sues Consolidated Edison Co., and MLB is back at the U.S. Supreme Court. Scroll down for major headlines, and more cases.

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How Trump's Latest Suspension of Worker Visas Could Affect Tech Industry

President Donald Trump's continued suspension of certain temporary work visas means the tech industry will have to survive without hiring new foreign talent through the end of the year. Although some lawyers say the order will make it more difficult for tech companies to recover in the precarious economic environment, others were surprised by the loopholes the administration left open, my colleague Alaina Lancaster writes at Law.com.

Banning the entry of H1-B and L-1A/B visas will do more harm to high-tech and multinational employers' efforts to reopen their businesses than the limited help provided by the 525,000 jobs the administration estimates will now be filled by American workers, said Valentine Brown, a Duane Morris partner in the firm's employment, labor, benefits and immigration practice in Philadelphia.

Kelli Duehning of Berry Appleman & Leiden in San Francisco said many employment lawyers in her circle were bracing for much worse. "We were surprised by the sheer fact that it didn't have more teeth to it," Duehning said.

Ruth Spillane of Fragomen in San Diego said that although immigration and employment lawyers might feel relieved that the proclamation paled in comparison to the rumors and speculation surrounding the order, there will still likely be a significant impact on businesses. "While certain proclamations might hinge on the economy or COVID impact to the economy, this is really impacting people's lives, it's impacting businesses and how they might be able to recruit foreign talent and, in turn, be more successful."

>> More reading… Silicon Valley CEOs Criticize Trump's Visa Restrictions. "Tech companies are among the biggest employers of foreign workers in the U.S., leaning on the H-1B program to fill software development, engineering and other roles requiring specialized skills that aren't always widely available in the U.S." [WSJ]

WIPL is known for having some of the most engaging and energizing keynote speakers attend to share their thoughts, experiences, war stories and tips on effective leadership. And this year is no exception. This year, we are grateful to welcome two remarkable women come and inspire us: Tina Tchen, the President and CEO of the "Times Up" Legal Defense Fund and Paula Boggs, Founder of Boggs Media LLC and Former Executive Vice President, General Counsel and Secretary, Law and Corporate Affairs at Starbucks from 2002-2012. READ MORE

 

Covid-19 Contact Tracing v. Protecting Privacy

Two data-privacy lawyers at O'Melveny & Myers—Scott Pink, special counsel in Silicon Valley, and John Dermody, counsel in Washington—write at Legaltech News about various issues associated with covid-19 and contact tracing. Here's what Pink and Dermody write about labor and employment.

• "The pitfalls are even greater for companies that are banking on contact tracing apps to protect their employees and business operations. Employers would be wise to be mindful of the numerous laws that potentially govern their use of contact tracing technology."

• "The Americans with Disabilities Act (ADA), along with many similar state laws, generally limits the ability of employers to collect medical information. However, the Equal Employment Opportunity Commission (EEOC) has issued guidance permitting employers to test for COVID-19 and to prohibit employees who pose a direct threat to health in the workplace from physically being in the workplace. Employers potentially could also require the use of a contact tracing app—provided the app is used in a non-discriminatory manner."

• "Additionally, some information collected by a contact-tracing app could potentially be considered 'medical information' under the ADA and would need to be stored with appropriate confidentiality protections. The EEOC coronavirus guidance is intended to be temporary, although given the extended nature of the pandemic, it is not clear when it will be rolled back."

 

Who Got the Work

>> Attorneys from Seyfarth Shaw are representing Consolidated Edison Co. of New York in a suit in which a former in-house attorney claims she was fired because of her age and gender. Sharon Goldzweig, 65, who served as associate general counsel at the company from 1999 to 2019, filed suit against the energy company in the U.S. District Court for the Southern District of New York. She is represented by Jeremiah Iadevaia and Emily Miller of Vladeck, Raskin & Clark in New York. My colleague Dan Clark has more on the case here at Law.com.

>> Kirkland & Ellis partner Paul Clement is lead counsel at the U.S. Supreme Court for Major League Baseball clubs defending against wage-and-hour claims brought by minor league players.

"This sprawling and ambitious effort to change the compensation system for minor-league baseball players should never have been certified as a series of class actions," Clement wrote in the petition. "The putative wage-and-hour classes here are composed of thousands of minor-league baseball players who live in more than a dozen different states, played at different positions for dozens of affiliates across 30 Major League Clubs, and were compensated under different terms."

The Kirkland team is working with lawyers from Proskauer Rose, including Elise Bloom, Adam Lupion and Mark Harris. Representing the minor leaguers, Korein Tillery LLC's Robert King is set to respond to the petition by July 13—about a week or so before professional baseball is set to return for a 60-game season, with many new rules and no fans, in the virus era.

>> Jones Day's Jacqueline Holmes argued in the Ninth Circuit for appellant BNSF Railway Company in a workplace injury case. The appeals court upheld judgment in favor of the former worker, who was awarded compensatory damages, lost wages, punitive damages and front pay. William Jungbauer of Yaeger & Jungbauer Barristers PLC argued for the appellee.

>> Sanford Heisler Sharp LLP and Shellist Lazarz Slobin LLP brought a sex-discrimination class action against oilfield services company Schlumberger Technology Corporation in Houston federal district court this week. The Houston Chronicle has more here.

 

Around the Water Cooler

California to Escalate Legal Battle With Gig Companies Over Worker Classification. "California Attorney General Xavier Becerra plans to file a preliminary injunction in his classification fight with Uber and Lyft, escalating a battle with major technology companies, based on a memo sent Wednesday morning from his office." [Politico]

California Budgets Over $17M To Enforce Misclassification Law. "In a budget deal finalized today and expected to be approved by state lawmakers in a matter of days, the California state legislature has reached an agreement that will see $17.5 million allocated toward enforcement of AB-5 in the 2020-2021 budget year. Unless the state law is radically revamped by voters through a November ballot measure, gig economy businesses can expect to be under the regulatory microscope by state enforcement officials for the foreseeable future." [Fisher Phillips]

Calls Rise Inside Amazon to Address Racial Inequity. "The calls for change—including diversifying its top ranks and addressing racism in its warehouses—have generated an unusual degree of turmoil inside the tech giant." [NYT]

Lessons From #MeToo—A Road Map for Return-to-Work Policies. "Employers are entering a new world as they begin to bring employees back to work in the midst of the Covid-19 pandemic. Morgan, Lewis & Bockius attorneys explain how the lessons employers learned about creating safe and respectful workplaces during the height of the #MeToo movement can be applied to the pandemic." [Bloomberg Law]

Job Recruitment Adopts Social Distancing as Coronavirus Alters Practices. "The initial stages of post-lockdown hiring are already revealing challenges that weren't anticipated when government shutdown orders and other factors prompted companies to fire and furlough workers by the tens of millions in the midst of a buoyant economy and tight job market earlier this year. As states reopen, employers are bracing for what they expect will be floods of applicants as they staff back up, especially once the higher unemployment benefits issued as part of pandemic relief come to an end." [WSJ]

Is It Time to Cancel Nondisclosure Agreements? "A growing number of corporate legal departments are starting to question the value of NDAs." [Law.com]

Courts and cases

Judge Orders McDonald's to Improve COVID-19 Protections. In one of the first rulings to order a business to improve its COVID-19 pandemic protections, a Chicago judge has ordered McDonald's to better enforce social distancing and mask wearing at its stores, concluding the risks to the community are "severe" and potentially a "matter of life or death" for its employees. [Law.com]

Plaintiff's Attorney Quits Davis Polk Racial Discrimination Lawsuit. A federal judge in Manhattan on Tuesday allowed one of the lawyers representing a former Davis Polk & Wardwell associate who has sued the firm for racial discrimination to withdraw from the case. The decision from U.S. District Judge Gregory Woods of the Southern District of New York comes in the wake of dueling filings over Davis Polk's request to dismiss most of the lawsuit filed by Kaloma Cardwell. [New York Law Journal]

Morgan Lewis Wins Reversal on Ex Parte Contact Ruling. "Law firm Morgan Lewis & Bockius LLP shouldn't have been disqualified as counsel over ex parte communications in a wage and hour suit, because the contact didn't result in substantial continuing effects on judicial proceedings, a California appeals court ruled." [Bloomberg Law] Read the ruling here.

After landmark Supreme Court ruling, transgender workers stand up for their rights. "Soukup's lawsuit is the start of what legal experts anticipate will be a wave of litigation testing a Supreme Court ruling that many in the LGBTQ community are comparing to the legalization of same-sex marriage in 2015." [The Washington Post]

USWNT Denied Motion to File Immediate Appeal in Equal Pay Case. "Any appeal in the lawsuit brought against U.S. Soccer by members of the women's national team will likely have to wait until at least September, based on a ruling by a federal judge in California on Tuesday. Judge R. Gary Klausner denied a motion brought by the players that would have allowed them to immediately begin the appeals process on the pay discrimination claims that he dismissed in May." [ESPN]

Law Barring Disclosure of Actors' Ages Violates 1st Amendment, Appeals Court Rules. "The 9th Circuit Court of Appeals ruled unconstitutional a 2017 California law, backed by the Screen Actors Guild, that prevented IMDb and other sites from disclosing actors' ages." [Los Angeles Times] Read the ruling here.

 

Fisher Phillips Boosts Privacy Team

Fisher Phillips said Edward Hopkins has joined the firm in Denver as a partner in the data security and workplace privacy practice.

"A large part of my practice will be spent on compliance and ways employers can limit their risk of exposure by taking preventative measures to protect and secure their data," Hopkins said. "One of my main goals will be shielding companies from litigation, but if litigation cannot be avoided then I will be ready to stand up in court for my clients as the trusted counsel they can rely upon at every phase of the proceedings."

Hopkins earlier ran HopkinsWay PLLC, where he represented plaintiffs in privacy and cybersecurity matters.