Welcome to Labor of Law, our labor and employment dispatch on the big cases, issues and trends. On the clock: Questioning NDAs, and the US Labor Department is pressed to revise policy about private equity in 401(k). A Fox News correspondent is fired—scroll down for Who Got the Work. Plus: all the big covid-19 workplace headlines.

Big development at the U.S. Supreme Court: Today, the justices declined—without comment—to take up the Equal Pay Act case Yovino v. Rizo. Now, the Ninth Circuit's ruling will remain in effect—that decision says employers cannot rely on prior salary history to justify compensation disparities between male and female colleagues performing the same work.

We love your feedback. Please send thoughts and suggestions to Mike Scarcella at [email protected]. Follow Mike on Twitter @MikeScarcella. Thanks for reading, and please have a happy and safe holiday.

 

Is It Time to Cancel Nondisclosure Agreements?

With so much bad press swirling around NDAs and with confidentiality contracts under increased scrutiny, more corporate legal departments are beginning to question the value of NDAs, my colleague Phillip Bantz writes.

"Quite honestly, you don't give yourself any further protections at law for having put those documents in place," said Susan Hackett, CEO of law practice management consulting agency Legal Executive Leadership in Chevy Chase, Maryland.

Hackett said she's hearing increasing discussion among corporate counsel about abandoning NDAs, which some contend don't offer much benefit and can bring on an onerous and time-consuming process, especially when opposing sides fight over the scope of contract terms.

Still, outside counsel stressed that the benefit of having an agreement in place can outweigh the headache of going through the NDA process, Bantz writes.

"It makes clear about what is confidential and what is a trade secret, so you're not debating that later or you're less likely to debate it," said David Woolf, a partner and employment litigator at Faegre Drinker Biddle & Reath in Philadelphia. "You'll still have to show it in court, but it's a huge advantage to say, 'Judge, we shouldn't be talking about this because he and the company have agreed that this is confidential.'"

Woolf added: "It's not a magic bullet, but it certainly helps."

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Announcing Two Incredible Keynote Speakers for the Women, Influence & Power in Law Conference

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

 

DOL Is Urged to Reverse Policy on Private Equity in 401(k)s

Nineteen organizations that advocate on behalf of investors, consumers, workers and retirees are calling on the Department of Labor to withdraw a policy statement that paves the way for 401(k) plans to add private equity investments as part of diversified investment options, my colleague Bernice Napach writes.

The organizations' letter, sent to U.S. Labor Secretary Eugene Scalia (above) argued private equity investments "are likely to saddle middle-class retirement savers with high costs and lock them into unnecessarily complex investments that underperform publicly available alternatives."

Last month, the Labor Department sent a private information letter to the Groom Law Group, allowing an asset allocation fund to include a private equity option as part of a "prudent investment mix" to enhance retirement savings. That letter allows private equity investments within diversified target date, target risk and balanced funds, Napach writes.

 

Who Got the Work

>> Ogletree, Deakins, Nash, Smoak & Stewart shareholder Walter Brown argued for Koss Construction Company in a gender pay discrimination dispute in the U.S. Court of Appeals for the Eighth Circuit. On Wednesday, the court upheld a ruling against the former employee. Edward Keenan of the Kansas City firm Keenan & Bhatia argued for the worker.

>> Catherine Foti (at left) of Morvillo Abramowitz Grand Iason & Anello is advising Fox News correspondent Ed Henry, fired this week for alleged sexual misconduct stemming from a complaint from a former employee. "The employee is represented by Douglas H. Wigdor, a prominent lawyer who has sued Fox News on behalf of several employees in misconduct cases," The New York Times reports. Foti said in a statement: "Ed Henry denies the allegations referenced in the Fox announcement and is confident that he will be vindicated after a full hearing in an appropriate forum."

>> "Cisco has been accused of allowing two managers to harass a fellow Indian employee from a disadvantaged caste known as 'untouchables,' according to a federal suit filed by the state of California," Business Insider reports. A spokesperson for Cisco denied the allegations and said the company "is committed to an inclusive workplace for all." Jennifer Lotz Curley of Curley, Hurtgen & Johnsrud LLP represents Cisco. Chief Counsel Janette Wipper, senior staff counsel Siri Thanasombat and staff counsel Jeanette Hawn represent the California Department of Fair Employment and Housing. Read the complaint.

>> Sanford Heisler Sharp's Deborah Marcuse (at left), managing partner of the Baltimore office, was on the team advocating for a former executive at the real estate company Cushman & Wakefield who alleged employment discrimination. The U.S. Court of Appeals for the D.C. Circuit this week revived the executive's complaint. Seyfarth partner Karla Grossenbacher in Washington argued for the company. Read the D.C. Circuit's ruling here.

>> "Las Vegas Strip hospitality workers filed a lawsuit against casino operators on Monday, accusing the companies of failing to protect employees from Covid-19, one of the first efforts to hold employers legally responsible for infections as cases in the U.S. surge," the WSJ reports. The law firm McCracken, Stemerman & Holsberry filed the complaint June 29 in Nevada federal district court. Jackson Lewis P.C. principal Paul Trimmer represents the Bellagio.

>> The employment firm Jennings Sigmond in Philadelphia and Oakland's Goldstein, Borgen, Dardarian & Ho are representing the plaintiffs in a worker classification suit, filed this week in Washington's federal trial court, against Vox Media. Read the complaint here.

>> Lawyers from Venable LLP advocated for Perdue Farms Inc. in a dispute at the Labor Department's administrative review board. A panel recently ordered further proceedings in the case, which involves a retaliation claim under the Food Safety and Modernization Act. The firm T M Guyer and Ayers & Friends advocated for the complainant.

>> Quarles & Brady LLP represented Mesa Airlines in a whistleblower retaliation case under the Aviation Investment and Reform Act at the Labor Department's administrative review board. The panel recently upheld a ruling against the complainant, who was represented by the Pittard Law Firm in San Antonio, Texas.

 

Around the Water Cooler…

What Workers Need to Know About Protests—On and Off the Job. "Companies generally wouldn't have explicit rules on protesting, but an employee participating in activism could run afoul of policies on attendance, attire or off-duty conduct." Cozen O'Connor's Aaron Holt said: "You can't pick and choose when you want to enforce a policy. If you allow employees to wear masks that have logos on them like their favorite sports team but you don't allow Black Lives Matter masks, then you're not consistently applying the policy. Or you can say no logos." [WSJ]

When Tech Companies Want to Fix Their Race Problem, the Work Often Falls on Unpaid Employee Groups. "Black employee groups are facing such tensions as corporate America grapples with concerns about racism. In the tech industry, which is still largely white, Asian, and male, the tensions have been particularly pronounced in recent weeks as companies have leaned heavily on these groups to host panels on race, vet company statements, allocate donations to racial justice nonprofits, and shepherd new diversity initiatives. [The Washington Post]

Covid-19

Going Up? Not So Fast: Strict New Rules to Govern Elevator Culture. "Employers and building managers are drafting strict rules for going up: severe limits on the number of riders (four seems to be the new magic number), designated standing spots to maximize social distance, mandatory masks, required forward-facing positions—and no talking. Some companies are hiring "elevator consultants" to figure how best to get thousands of people to their desks, balancing risk of elevator density against a potential logjam as riders wait—at least six feet apart—for their turn." [NYT]

A Candid Discussion on the Effects of COVID-19 on Employment Law. Employment law may be the practice area most affected by Covid-19. Below is a frank conversation between Steve Kardell, name partner in Kardell Law Group in Dallas, who focuses on the plaintiff's side of Covid-19 employment law and, on the management side, Harry Jones, a shareholder in the Dallas office of Littler Mendelson who is a designated Covid-19 expert for the firm. [Corporate Counsel]

Workplaces With Covid-19 Cases Face a Question: What to Tell the Rest of the Staff? "Employers are prohibited by federal law from identifying the infected worker. Beyond that, there is no universal playbook for whether or how confirmed cases should be disclosed and to whom, resulting in a patchwork of approaches that can vary widely even within the same industry." [WSJ]

Employers Brace for a 'PTO bomb' as Vacation-Starved Employees Make Time Off Requests. "Companies are trying to mitigate the impact by capping the amount of leave employees can take during certain periods, offering to cash out PTO and allowing more vacation days to roll over into next year. Some are setting up programs where employees with excess time can donate it to coworkers without enough." Nixon Peaboy's Brian Alcala said: "As people slowly get back to the office there could be a PTO bomb whereby everyone will want to take their PTO by year's end." [Chicago Tribune]

No, Really, Your Boss Wants You to Take Vacation—Now. "Many employers are pushing people to take time off to avoid burnout, but there's a fiscal reason for bosses' vacation enthusiasm too. Unused vacation time is logged as an accounting liability on corporate balance sheets, so companies notice when it adds up, says Peter Cappelli, a professor of management at the University of Pennsylvania's Wharton School." [WSJ]

Federal agencies

Labor Department Proposes Fiduciary Exemption for Retirement Plans. "The Labor Department proposed a new rule Monday for retirement accounts that allow brokers and other types of financial advisers to provide fiduciary advice and still receive commissions in some cases. Consumer advocates say the proposed regulation would weaken standards under the federal law that governs retirement accounts." [WSJ] ThinkAdvisor has more here.

 

Notable Moves & More

>> McGuireWoods partner Sabrina Beldner in Los Angeles became chair of the labor and employment practice on Wednesday, succeeding Bruce Steen, the next general counsel of the firm. Steen takes over that role in January 2021, succeeding Doug Ey. Steen had led the labor and employment team since 2016. "Bruce has done a wonderful job as a department chair, and Sabrina will be stepping in to lead one of the top L&E departments in the country," Dion Hayes, deputy managing partner for litigation, said in a statement. "We are very fortunate they each are willing to serve the firm by undertaking these important practice management responsibilities."

>> Bryan Cave Leighton Paisner said it has added Dr. Julia Schweitzer as partner in Frankfurt to lead the employment practice in Germany. Schweitzer arrives from the international employment firm JUSTEM Rechtsanwälte. Additionally, the firm said Janine Weber would become an associate on Schweitzer's team on Aug. 1.

>> Carlton Fields said it has hired Amanda Brahm as a labor and employment associate in Hartford, Connecticut. Brahm represents educational institutions, the firm said. Carlton Fields said Brahm's hiring is part of a strategic expansion of the national labor and employment practice.